FOR MORE INFORMATION ON THIS TOPIC, SEE INTERIM REPORT, Chapter XI
For the full text of draft recommendations, see the accompanying document
Main Point of the Chapter
This is a complex area of the law. Ignorance and misunderstandings of the law, across multiple stakeholder groups and those directly affected, contribute to shortfalls in its implementation. Chapter XI considers reforms to improve the coordination, accessibility, effectiveness and strategic focus of education and information initiatives in this area.
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. Ontario law currently includes only limited entitlements to rights information or rights advice for persons found to be lacking or potentially lacking legal capacity. Ontario’s laws were originally accompanied by the Advocacy Act, since repealed, which envisioned an extensive system for the provision of rights advice to persons affected by these laws.
There are numerous organizations that provide information on various aspects of Ontario’s legal capacity and decision-making laws. However, there is no central, authoritative source for information. Organizations create and provide information relevant to their particular mandates and the needs of the specific groups they serve. It is not clear to those seeking information where they should look, or whether the information they find is accurate or appropriate to their needs: there is, for example, considerable mistaken application of information based on laws from other jurisdictions.
Nor is there any comprehensive strategic focus to the development and dissemination of information, so that efforts may be replicated or the needs of some groups overlooked. There are no required proactive means of informing substitute decision-makers about their duties and responsibilities: unless they take the initiative to research the law, they are unlikely to be aware of all of their obligations, or to have access to guidance in carrying out their significant responsibilities.
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. This ignorance and misunderstanding substantially contributes to shortfalls in implementation. Reforms to promote better understanding (and therefore better implementation) of the law, must consider the needs of four groups:
· persons directly affected (i.e., those whose legal capacity is either lacking or in doubt);
· persons providing assistance as substitutes or, if the LCO’s recommendations are implemented, supporters;
· professionals who are expected to provide expert implementation of the law (including health practitioners expected to assess capacity and obtain consent, and lawyers expected to create powers of attorney or to assist with disputes or rights enforcement); and
· third parties who interact with the law in the context of providing services or contracting with respect to a transaction.
The needs of these groups will differ, as will the most effective methods of reaching them.
The LCO’s proposed recommendations aim to make more effective use of existing resources and expertise, by:
· promoting the accessibility and trustworthiness of the information available,
· supporting a collaborative approach to the development of resources, and
· increasing the coordination of the provision of education and information.
It should be noted that, despite its importance, the provision of information and education is not a panacea for all of the issues affecting this area of the law. Information on its own does not create the ability to act on it. The draft recommendations for reform in this area must be understood in conjunction with other draft recommendations throughout the Interim Report, particularly including those related to monitoring and oversight, and dispute resolution and rights enforcement.
Here is a summary of the LCO’s draft recommendations in this area:
45. Legislation include a clear statutory mandate for coordination and strategic development of information and education.
46. The institution identified for this statutory mandate develop, either independently or in collaboration, education and information strategies, initiatives and materials to address information and education needs in this area.
47. Strategies and materials take into account the needs of diverse communities and be developed with consultation with individuals, families and those who work with or represent these individuals.
48. A central, coordinated information clearinghouse be created for substitute decision-makers and persons directly affected by the law.
49. Standard forms for personal appointments contain information on how readers can access further information, for example, through the proposed clearinghouse.
50. The provision of information to substitute decision-makers under the Health Care Consent Act be strengthened.
51. Adjudicators be empowered to order education for guardians, persons acting under a power of attorney, or supporters.
52. Professional educational institutions re-examine their curriculums and consider strengthening information on these issues.
53. Health regulatory colleges strengthen the ways in which their quality assurance programs address this material.
54. The Ministry of Health and Long-Term Care support and encourage the health regulator colleges in implementing draft recommendation 53.
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