Decision-making is part of our daily lives. The decisions that we make may be large or small, routine or life-changing, complicated or straightforward, but regardless they are important as expressions of our values and identity, as opportunities to learn from both our successes and mistakes, and as the fundamental means through which we shape our lives. Decision-making is therefore a highly personal endeavor, and the ability to exercise control over our choices is widely viewed as a fundamental right. Generally, people’s decisions about their private lives are controlled by the law only when we have concerns about, for example, safety, but otherwise, while others may think our decisions foolish, they are “our decisions”.
At the same time, decision-making also often has a public aspect. When we are interacting with other individuals or organizations, clarity, certainty and accountability become important considerations. When others are being asked to rely on or implement our decisions, it is important for them to be sure that they understand the decision that has been made, that they can rely on the finality of that decision, and that all parties can be held to account to uphold their part of the decision. In this public realm, law plays a major role, for example in determining when an agreement is valid and we are entitled to rely on it, and when a party is liable for a breach of the agreement.
Regardless of whether the decisions are in the public or purely in the private sphere, however, the law does intervene when there is concern about whether an individual has the legal capacity to make these decisions. Laws regarding legal capacity, decision-making and guardianship must take into account both the personal and the public aspects of the decision-making, and so raise difficult and important ethical and practical issues. And here, our assessment – and the law’s view – of whether an individual should have sole control over her or his decisions regardless of the “wisdom” of those decisions takes on a far more ambiguous appearance.
These laws affect a substantial portion of Ontario’s population, including persons with significant temporary or chronic illnesses, with aging related disabilities such as dementia, with mental health disabilities, acquired brain injuries or developmental disabilities. These laws of course also have a major impact on families and caregivers, as well as on a wide array of professionals and service providers. Most Ontarians will, at some point in their personal or professional lives, encounter this area of the law.
This project arose from the Law Commission of Ontario’s (LCO) two Framework projects on the law as it affects persons with disabilities and the law as it affects older adults. Ontario has a comprehensive and relatively coordinated statutory scheme related to legal capacity and decision-making, resulting from a thorough and thoughtful law reform process in the late 1980s and early 1990s. However, in both Framework projects, a wide array of individuals and stakeholders raised concerns about Ontario’s laws in these areas and urged the LCO to undertake a thorough review. This project applies the Frameworks to this area of the law.
The LCO’s review of Ontario’s statutory regime for legal capacity, decision-making and guardianship has raised many challenging issues, for which there are no straightforward solutions. The onus on us is to make every effort to ensure that these laws are effective and fair, and that they respect and promote the substantive equality of older persons and persons with disabilities.
This Interim Report sets out the LCO’s analysis and draft recommendations for reform of Ontario’s legal framework relating to legal capacity and decision-making. It follows the June 2014 release of a comprehensive Discussion Paper and Summary of Consultation Issues, and the subsequent public consultations. The LCO is seeking feedback on this Interim Report, and will be releasing a Final Report in 2016.
B. The Project Process
Concentrated work on this project began very early in 2013, with a process of preliminary consultations and research. During this phase, the LCO spoke with approximately 70 individuals and organizations, so as to understand how the law was currently operating, the priorities for reform, and other projects underway which might affect this project. Through this work, the LCO developed the project scope and created a project Advisory Group, which has provided expertise on the subject matter of this project, as well as extensive assistance with outreach and public consultation strategies and execution. The work of the project Advisory Group has been extremely valuable, and the LCO is very grateful for the considerable time and thoughtfulness that these individuals have devoted to this project. The members of the project Advisory Group are listed in the front matter of this Interim Report.
During 2013, the LCO conducted wide-ranging research, as well as commissioning a number of expert papers on a variety of topics that are listed in Appendix C. Based on this research and the preliminary consultations, and with the input of the Advisory Group, the LCO developed a comprehensive Discussion Paper, which was released in late June 2014. This was accompanied by a much shorter and simplified Summary of Consultation Issues. These documents are available at http://www.lco-cdo.org/en/capacity-guardianship.
Through the late summer and fall of 2014, the LCO conducted extensive public consultations on the issues raised in the Discussion Paper and Summary.
Written Submissions: The LCO received 16 formal written submissions, most of which were lengthy documents dealing in-depth with particular reform options. The LCO also received a significant number of written communications from individuals with personal experience, whether as persons directly affected by or family members navigating the law.
Consultation Questionnaires: The LCO developed two consultation questionnaires as a way to provide additional opportunities for individuals to share their experiences and aspirations for change. It must be emphasized that these questionnaires were not intended as social science research, but as a means of input for those affected by the relevant laws. There were two questionnaires: one for individuals who receive assistance with decision-making, and another for family members, friends and others who provide assistance with decision-making. Copies of the consultation questionnaires are included in Appendix D. These questionnaires were available on the LCO website and in multiple formats, and the LCO worked with a wide range of community partners to distribute them to interested communities.
The LCO received 109 questionnaires from those receiving assistance of some form with their decision-making needs. Of this group, most were older adults, with 36 per cent of respondents age 85 or older, 45 per cent between the ages of 65 and 84, and the remaining 19 per cent under the age of 65. Women made up 67 per cent of the respondents. While the LCO heard in this way from persons operating under a variety of legal or informal arrangements, including persons under statutory or court-appointed guardianships, by far the majority of respondents were receiving assistance through a power of attorney, and in most cases, the person(s) with authority under the POA was exercising plenary powers (that is, in relation to all decision-making). Because confusion over legal documentation was evident in the responses, it is difficult to tell whether the broad powers being exercised were appropriately legally authorized. Only 30 per cent of individuals recollected any formal assessment of their legal capacity taking place.
The LCO received 103 questionnaires from individuals providing assistance with respect to decision-making. Of this group, the majority at 55 per cent either did not have a legal document or could not identify it if they had it. Of those that did have a legal document and could identify it, almost half had a power of attorney (48 per cent). The vast majority of respondents to this survey – 78 per cent – were female, and a slight majority of 54 per cent were living with the person for whom they provided decision-making assistance. Most (62 per cent) were acting for an adult child. That is, this survey tended to reflect the experiences of those providing decision-making assistance to persons who had disabilities from birth or developed them at a young age within Ontario’s legal capacity and decision-making laws, while the group completing the survey related to receiving assistance reflected the experiences of that group of Ontarians who age into disability.
Focus Groups: Thirty focus groups were held in a number of locations in Ontario. Most were developed through partnerships with a wide range of institutions and professional and community organizations. These focus groups brought together small groups of individuals (up to 15 participants per session) with a shared experience or expertise for in-depth discussions of experiences with the law and options for reform. The LCO heard from distinct and divergent perspectives and experiences through the focus groups, including from individuals directly affected by the law, family members, and professionals, experts and service providers, including ethicists, Community Care Access Centre staff, government, judiciary, community and advocacy organizations, clinicians, lawyers, social service providers and others. A complete list of the focus groups can be found in Appendix E.
Consultation Interviews: In the late fall and early winter, the LCO conducted a series of 24 in-depth interviews. These included interviews with long-term care home providers, service providers, francophones, northerners, experts and others.
Consultation Forum: On October 31, 2014, the LCO hosted a full-day consultation forum, bringing together persons with diverse experiences and expertise to work in small groups to identify principles, purposes and priorities for reform, and to consider how law reform in this area can accommodate widely differing experiences and needs.
All told, the LCO has heard from close to 600 individuals and organizations. A list of professionals and organizations consulted can be found in Appendix C.
It is not possible within the span of this Interim Report to explicitly reflect all that has been heard through this extensive process, although we have provided illustrations of what we have heard. We have given careful consideration to all the perspectives brought forward, and our analysis and draft recommendations have been fundamentally shaped by this process. The LCO thanks all those who generously gave of their time to assist us in understanding how the law currently works, challenges in the law and its implementation, the priorities and principles for change, and the options for reforms. These issues are difficult, and as they profoundly shape the lives they affect, they are also often painful. The LCO appreciates the willingness of so many individuals to share their struggles with us. We are deeply aware of that this area of the law it often affects individuals who are often already facing many challenges.
C. Project Scope and Themes
The scope of this project was determined through the LCO’s preliminary research and consultations. The focus is on the provisions of the Health Care Consent Act, 1996 (HCCA), Substitute Decisions Act, 1992 (SDA) and Part III of the Mental Health Act (MHA) dealing with examinations of capacity to manage property upon admission to a psychiatric facility. The LCO will not be making recommendations about the common law of capacity and consent, capacity to consent under privacy law or consent to research, or broader aspects of the MHA such as community treatment orders.
Even within Ontario’s statutory consent and capacity laws, there are many issues that the LCO will not be addressing in this project, including extra-judicial recognition of powers of attorney, and the ability of an attorney under a power of attorney to make a beneficiary designation.
This is not a reflection on the importance of the issues not addressed: they are of considerable practical significance to many Ontarians. Given the breadth of the issues, the LCO has focussed on those with broad general implications for the statutory scheme as a whole, which were also pressingly identified by stakeholders. In some cases, such as the issues related to extra-judicial recognition, significant work is being done by other bodies; therefore, it is consistent with the LCO’s criteria for undertaking projects for the LCO to focus its efforts elsewhere.
As was outlined in the Discussion Paper, the scope of this project has been defined to include:
1. The standard for legal 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