BACKGROUND

The Law Commission of Ontario (LCO) has undertaken a project to review Ontario’s statutory framework related to legal capacity, decision-making and guardianship, to develop recommendations for reform to law, policy and practice in this area. This project has its roots in two of the LCO’s completed projects: the Framework for the Law as It Affects Older Adults and the Framework for the Law as It Affects Persons with Disabilities.  It is also linked to the LCO’s recently completed project, Capacity and Legal Representation for the Federal RDSP. 

During the course of those projects, the LCO heard considerable concern about how the laws in this area were operating in practice, and their impact on the autonomy, security, dignity and inclusion of older adults and persons with disabilities.  This project applies the LCO Frameworks to this area of the law.  This means that the project uses a principles-based analysis, takes as an ultimate goal advancing towards substantive equality for older persons and persons with disabilities, and pays close attention to the particular needs and circumstances of those directly affected by this area of the law. 

The project focuses on the core statutory framework of the Substitute Decisions Act (SDA) and Health Care Consent Act (HCCA), as well as the provisions of Part III of the Mental Health Act (MHA) related to assessment of legal capacity to manage property. It does not address the common-law, other statutes that touch upon consent and capacity issues, or the broader provisions of the MHA.  Within this scope, it concentrates on the following broad issues:

1.     The standard for capacity, including tests for capacity and the various avenues and mechanisms for assessing capacity under the SDA, HCCA and MHA;

2.     Decision-making models, including an examination of the desirability and practical implications of alternatives to substitute decision-making, including supported and co-decision-making;

3.     Processes for appointments (for example of substitute decision-makers), whether through personal appointments or a public process, with a focus on appropriate use and on improving efficiency and accessibility;

4.     The roles and responsibilities of guardians and other substitute decision-makers, including potential for more limited forms of guardianship and consideration of options for those who do not have family or friends to assist them;

5.     Monitoring, accountability and prevention of abuse for substitute decision-makers or supporters, however appointed, and of misuse by third party service providers, including mechanisms for increasing transparency, identifying potential abuse and ensuring compliance with the requirements of the law; and

6.     Dispute resolution, including reforms to increase the accessibility, effectiveness and efficiency of current mechanisms. 

This Interim Report is the penultimate stage of this project. It sets out the LCO’s draft analysis of the issues and recommendations for reform to law, policy and practice, as a basis for comment. It will be circulated widely, and responses will be taken into account in the preparation of the Final Report. 

The draft analysis and recommendations in this Interim Report are based on intensive research, including the commissioning of several expert papers on a range of topics. As well, the LCO conducted extensive consultations, both at the preliminary stage, and following the release of a comprehensive Discussion Paper during the summer of 2014. The LCO has heard from a wide array of professional and institutional stakeholders, as well as family members and those directly affected by the law. As well, the LCO has benefitted throughout the course of this project from the expertise of a hard-working project Advisory Group.

The LCO’s proposed recommendations for reforms to law, policy and practice in this area fall into six broad themes: 

1.     Improving access to the law;

2.     Promoting understanding of the law;

3.     Strengthening the protection of rights under the Health Care Consent Act;

4.     Reducing inappropriate intervention;

5.     Increasing accountability and transparency for personal appointments; and

6.     Enabling greater choice of substitute decision-makers. 

Each of these will be addressed separately below. 

 

CONTEXTS AND CHALLENGES FOR REFORM

While legal capacity, decision-making and guardianship legislation does not refer to specific classes of persons, some persons are more likely to be found legally incapable or to be assumed to be legally incapable, including persons with developmental, intellectual, neurological, mental health or cognitive disabilities. It would be difficult to overstate the diversity among those directly affected by legal capacity and decision-making laws. Differences in the nature of the impairment in decision-making abilities may significantly affect needs, so that a person whose impairment is episodic will have quite different needs from the law from those of a person whose abilities are stable or declining. The stage of life at which needs for assistance arise has considerable implications for the nature and extent of the social and economic supports available. As well, gender, culture, family structures, geographical location and many other factors will affect how this legislation is experienced. 

Ontario’s current statutory regime for legal capacity, decision-making and guardianship took shape as a result of a monumental reform effort spanning the late 1980s and early 1990s. Three separate law reform initiatives undertaken during this time –  the Committee on the Enquiry on Mental Competency,  the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons and the Review of Advocacy for Vulnerable Adults – profoundly influenced Ontario’s current laws. Ontario’s resulting statutory framework for legal capacity, decision-making and guardianship is extensive, intricate and nuanced. Its underlying values of freedom from unnecessary intervention and self-determination continue to be seen as appropriate foundations for this area of the law. 

However, it has been widely acknowledged that these laws have encountered significant implementation issues, whether because of the confusion that arises within a complex system, lack of knowledge and understanding of the law, shortfalls in dispute resolution and rights enforcement mechanisms, inadequate oversight and monitoring mechanisms for substitute decision-makers (SDMs) or other issues. 

Reform to this area of the law must be designed with sensitivity to its evolving context, including:

1.     Demographic and social trends and pressures, including the aging of Ontario’s population, changing family structures, and growing cultural and linguistic diversity;

2.     The family context, including ongoing debates about the appropriate roles of family and government, the increasing strain on family caregiving, and the challenges associated with assisting another individual with decision-making needs;

3.     Social isolation and marginalization, which tends to disproportionately impact those directly affected by these laws, and which may increase vulnerability to abuse and decrease the options available for decision-making assistance;

4.     Trend towards formal processes in the delivery of financial and social services may make the informal arrangements with which families have frequently operated in the past untenable; and

5.     The delivery of social, health and financial services is inextricably tied to the ways in which issues related to legal capacity and decision-making arise and are resolved. 

 

THEME 1: IMPROVING ACCESS TO THE LAW

Throughout this project, one of the dominant areas of concern has been access to the law, particularly in relation to the processes and dispute resolution mechanisms under the SDA. While there are concerns with the operations of the Consent and Capacity Board (CCB) with respect to the HCCA, overall, the CCB is seen as an appropriate forum for addressing these issues, and as providing relatively accessible and timely adjudication. 

Effective access to the law affects every other aspect of legal capacity, decision-making and guardianship laws. Lack of accessibility may create incentives for families to adopt riskier informal approaches or to attempt to solve their problems in creative ways that are not in harmony with the intent of the legislation, for individuals to abandon attempts to enforce their rights, or for parties with superior access to resources necessary to navigate the system to misuse it for their own ends. 

In particular, the court-based adjudicative mechanism under the SDA has been critiqued as complex and difficult to navigate, as having limited ability to tailor its processes to the specialized needs of those affected by this area of the law, and by reason of its relative inaccessibility, lacking in the flexibility needed to address the fluctuating or evolving nature of legal capacity. As well, most disputes in this area of the law involve parties who have had and may continue to have ongoing relationships: a number of participants in the LCO’s consultations expressed a desire for greater use of less adversarial approaches in appropriate contexts. 

The LCO considered a number of potential approaches to improving the accessibility of the law under the SDA, including expansion of the Public Guardian and Trustee’s (PGT) investigative mandate, the creation of a specialty court, and the provision of expanded advocacy and navigational supports to those directly affected by these laws. 

The LCO proposes the following reforms to improve access to the law:

1.     Transfer of jurisdiction over matters under the SDA to a reformed and expanded CCB;

2.     Provision of additional powers for the CCB, including enabling the CCB to provide directions with respect to the wishes of the person and to determine compliance of  substitute decision-makers (SDM) with  obligations under the SDA;

3.     Strengthening the supports currently provided to persons affected by this area of the law by “section 3 counsel” and by Legal Aid Ontario;

4.     Exploring possibilities for specialized mediation programs;

5.     Exploring the potential for the PGT, upon completion of an investigation that does not warrant an application for temporary guardianship, to forward a written report to the CCB for action.

 

THEME 2: PROMOTING UNDERSTANDING OF THE LAW

It is clear to the LCO, both from its own research and consultations, and from concerns expressed by key stakeholders, that there is widespread ignorance and misunderstanding of this area of the law, and that this substantially contributes to shortfalls in implementation. This lack of understanding is not limited to those directly affected by the law, who experience many barriers to obtaining information about their rights under the law, but also to those carrying out responsibilities as SDMs, and to the service providers and professionals who provide services to those affected by the law or conduct assessments of legal capacity. 

Reflecting the nature of the issues at stake and the diversity of those affected, this is a highly complicated and multifaceted area of the law: misunderstandings are not surprising, but given the fundamental rights at issue, the consequences of ignorance or misunderstandings may be grave. 

There are numerous organizations that provide information on various aspects of Ontario’s legal capacity and decision-making laws, including the Ontario Seniors Secretariat, the Public Guardian and Trustee, the Consent and Capacity Board, legal clinics such as the Advocacy Centre for the Elderly and ARCH Disability Law Centre, and others. However, there is no central, authoritative source for information. Organizations create a