FOR MORE INFORMATION ON THIS TOPIC, SEE INTERIM REPORT, Chapter VI
For the full text of draft recommendations, see the accompanying document
Main Point of the Chapter
This Chapter explores alternatives to substitute decision-making, in response to desires for less restrictive approaches to decision-making impairments. Particular attention is paid to proposals to either replace or supplement substitute decision-making with an approach termed “supported decision-making”.
Ontario, like other common law jurisdictions, employs an approach to legal capacity and decision-making based on substitute decision-making. Under the Substitute Decisions Act, 1992 and Health Care Consent Act, 1996, where a person does not meet the threshold for legal capacity and a decision is required, another person – a substitute decision-maker – will be in some way appointed to make that decision.
In recent years, as the social model of disability has been more widely accepted and human rights approaches have continued to grow in influence both internationally and domestically, voices have urged a re-examination of the substitute decision-making model and the development of alternatives. The term “supported decision-making” is often used to refer to these alternatives. There has also been some exploration of the concept of “co-decision-making”. The creation of the Convention on the Rights of Persons with Disabilities, which addresses the issue in Article 12, has added urgency to the discussion. The issues raised here are closely linked to calls for re-evaluation of the concept of legal capacity, discussed in the previous section.
This is one of the most controversial issues in this area of the law, as well as one of the most difficult, raising profound conceptual and ethical questions, as well as considerable practical challenges. Complicating this discussion further are the highly variable meanings given to “supported decision-making”, even among its proponents. Various forms of supported decision-making have been enacted in some Western Canadian jurisdictions and several European countries, and have been proposed in a number of commonwealth jurisdictions.
Some propose a future in which all substitute decision-making, including through powers of attorney, is abolished and replaced by a system of supports. Others see supported decision-making as a less restrictive alternative to substitute decision-making and more suited to some circumstances than others. Some believe that supporters can be appointed through external appointments, while others see this as fundamentally incompatible with the philosophy underlying the concept. Some propose a highly formal mechanism with extensive checks and balances, while others hope for something flexible and informal.
The LCO has considered supported decision-making as involving the following four elements:
1. Supported decision-making does not require a finding of lack of capacity;
2. In such arrangements, legal responsibility for the decision remains with the supported individual;
3. These arrangements are based on the consent of the individual who may require assistance in making decisions; and
4. It is based on relationships of trust and intimacy.
Consideration of these proposals requires that attention be paid to two linked issues. The first is decision-making practices, which includes all of those values and daily practices through which those who surround a person with impaired decision-making abilities approach the practical realities of reaching particular decisions. The second is legal accountability frameworks, which come into effect when decisions reached through decision-making practices must be put into effect in the public sphere, for example, by entering into a contract.
In the more private realm of decision-making practices, considerations of autonomy, security and dignity are pre-eminent, although even decisions in this realm might affect others (such as other family members) and this may also have to be considered. In the more public realm of decision-making where decisions may have significant practical and legal consequences, not only for the individual but for third parties, considerations of clarity, certainty, and appropriate apportionment of accountability and liability must also be given significant weight.
Supported decision-making was the subject of strong opposing views during the LCO’s public consultations. The core arguments in favour of supported decision-making have their roots in concern for advancing the autonomy and equality of persons with disabilities that affect their decision-making abilities. The key concerns raised centred on the potential for abuse of such a system by family members and third parties, the question of its suitability for all groups affected by this area of the law, and on what was perceived to be the lack of clarity surrounding responsibility and liability inherent in such a system.
It was also pointed out that Ontario’s laws already include a number of provisions requiring substitute decision-makers to support the participation of individuals in decision-making to the greatest degree possible, and to take into account wishes, values and beliefs when making decisions. It was recommended that these provisions be strengthened and their implementation improved, so as to better promote the autonomy of individuals who fall under these laws.
The issues in this area raise considerable challenges. The legislation applies to all, but the needs of those affected vary considerably from group to group, across time and across types of decisions. Desires for non-marginalizing approaches and for greater autonomy may sit uneasily with needs for clarity and accountability and with concerns about abuse and misuse. The effort to find new approaches that will better meet needs may result in risks to individuals who tend to be marginalized and vulnerable, and for whom errors in approaches may have serious, long-term consequences.
The LCO’s proposed approach to reform in this area centres on:
· Ensuring that substitute decision-making is more truly a last resort: proposed reforms to this end are found throughout the Interim Report;
· Promoting positive decision-making practices, such as further encouraging the involvement of individuals in decisions to the greatest degree practicable and ensuring that decisions are attention to and reflect to the greatest degree possible the values, preferences and life goals of the individual;
· Ensuring that legal accountability structures mirror, as closely as possible, the actual decision-making process;
· Providing options to meet the diverse needs of those affected by this area of the law;
· Taking a progressive realization approach by building on existing good practices, providing new options with carefully considered safeguards, and evaluating the evidence on which reform is based.
Here is a summary of the LCO’s draft recommendations in this area:
15. The Government of Ontario implement a statutory process that addresses consent to detention in long-term care or retirement homes for persons who lack legal capacity and for whom detention is required to address vital concerns for security or safety.
16. Statutory requirements for substitute decision-making with respect to property be clarified with respect to the p