FOR MORE INFORMATION ON THIS TOPIC, SEE INTERIM REPORT, Chapter IV
For the full text of draft recommendations, see the accompanying document
Main Point of the Chapter
Chapter IV addresses the foundational concept of legal capacity, and the debates regarding the continuing appropriateness of its use as a foundation for this area of the law. It considers proposals to move to an approach in which all have a right to legal capacity in all circumstances, and outlines a proposed approach based on the human rights concept of accommodation.
The concept of “legal capacity” underlies this entire area of the law, providing both its threshold and its rationale. This concept is both complex and contested. Under the Substitute Decisions Act and Health Care Consent Act, where a decision must be made and an individual lacks “legal capacity” to make that decision, a substitute decision-maker is appointed to do so. This means that concepts of legal capacity are closely connected to concerns about autonomy, personhood and security, in that it is tied to the ability to make independent decisions and take responsibility for their consequences.
Ontario has adopted a functional and “cognitive” approach to legal capacity. This means that capacity is determined by an individual’s ability to “understand and appreciate” the information relevant to the decision. Legal capacity does not depend on an individual’s medical status or on the wisdom of her or his decisions. The Substitute Decisions Act and Health Care Consent Act set out specifically what information an individual must understand and appreciate in order to have capacity to make different decisions, such as decisions about admission to long-term care, to make decisions about health care treatments, or to make a power of attorney for property, for example. This means that tests for legal capacity are specific to their particular “domain” or issue.
There are concerns that Ontario’s approach to legal capacity is, in practice, poorly understood and applied. As a result, individuals may, for example, inappropriately have rights removed. These concerns are addressed throughout the Interim Report.
There is also a fundamental critique of Ontario’s approach to legal capacity. This is connected to some interpretations of the Article 12 of the Convention on the Rights of Persons with Disabilities and the concept of supported decision-making, both of which are subjects of considerable debate and controversy.
Some have proposed that legal capacity is an irremovable right of all individuals in all circumstances and that it is in fact a human right attributable to all. In this view, the removal of legal capacity is a denial of human rights. This approach proposes that substitute decision-making is never acceptable, and must be abolished: instead, all individuals must be provided with the supports that they need to enable them to make decisions that have legal effect. Individuals also must have the right not to exercise their right to supports, and to terminate or change a support relationship at any time.
This view has itself been subject to criticism. It is seen as proposing a legal framework in which individuals with significant impairments to their decision-making abilities may be highly vulnerable to abuse with no meaningful recourse. As well, critics see it as in some cases inappropriately allocating responsibility for potentially significant negative legal consequences for decisions to individuals who never understood the risks or negative outcomes. Service providers have also raised concerns regarding clarity and accountability for transactions in situations where all have legal capacity.
The LCO’s draft recommendations propose that the functional and cognitive approach to legal capacity be retained. However, the human rights concept of accommodation should be integrated into this approach, so that individuals are understood to have legal capacity where the test can be met by the individual with the provision of appropriate supports and accommodations short of undue hardship.
Here is a summary of the LCO’s draft recommendations in this area:
3. Ontario retain a functional and cognitive approach for legal capacity.
4. Ontario’s legal capacity and decision-making legislation be amended to clarify that legal capacity exists where an individual can meet the test with appropriate accommodations, and to require that assessments of capacity be carried out with appropriate accommodations.
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