FOR MORE INFORMATION ON THIS TOPIC, SEE INTERIM REPORT, Chapter VIII
For the full text of draft recommendations, see the accompanying document
Main Point of the Chapter
Access to the law is fundamental to the effective functioning of all aspects of legal capacity, decision-making and guardianship laws. Improvements in accessibility can increase the flexibility, effectiveness and coordination of this area of the law. Chapter VIII examines barriers to access to the law, particularly for issues under the Substitute Decisions Act.
Currently, most issues under the Substitute Decisions Act, including the processes for the appointment, variation and termination of guardianships and the oversight of powers of attorney, fall within the jurisdiction of the Ontario Superior Court of Justice.
The Consent and Capacity Board, an expert, specialized administrative tribunal, is responsible for reviewing findings of incapacity. It also oversees a wide range of issues under the Health Care Consent Act, including determining whether a substitute decision-maker under that Act is acting in compliance with the requirements of the legislation, providing directions when the appropriate application of the Health Care Consent Act is not clear, and appointing decision-making representatives under that legislation.
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.
Throughout this project, access to the law has been a dominant concern. This is especially true for the processes and dispute resolution mechanisms under the Substitute Decisions Act. There are concerns with the operations of the Consent and Capacity Board, such as the ongoing debate as to whether it is overly focussed on legal rights or insufficiently so. Overall, however, the Consent and Capacity Board is seen as an appropriate forum for addressing these issues, and as providing relatively accessible and timely adjudication.
The court-based adjudicative mechanism under the Substitute Decisions Act has been critiqued as:
· being complex and difficult to navigate,
· having limited ability to tailor its processes to the specialized needs of those affected by this area of the law, and
· because 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 Substitute Decisions Act, including:
· expansion of the Public Guardian and Trustee’s investigative mandate,
· the creation of a specialty court, and
· the provision of expanded advocacy and navigational supports to those directly affected by these laws.
All approaches have both benefits and downsides. The LCO’s proposed approach is centred on moving oversight of the Substitute Decisions Act to a reformed and expanded Consent and Capacity Board. This is a significant step, and would involve start-up costs in the short-term. However, the LCO believes that this is, over the longer term, the most forward looking, cost-effective, realistic and practical option for reducing barriers to accessing the law.
Such a reform would enable the development and application of specialized expertise in this area. If properly implemented, the move to an administrative tribunal could provide a more accessible and less intimidating form of justice for the often vulnerable individuals affected by this area of the law. Bringing together all matters related to legal capacity and decision-making could also improve system coordination.
Here is a summary of the LCO’s draft recommendations in this area:
24. Jurisdiction over matters under the Substitute Decisions Act be transferred to a reformed and expanded Consent and Capacity Board.
25. This transfer of jurisdiction be accompanied by amendments to the Rules of Procedure and composition of the Consent and Capacity Board, to strengthen its expertise and enable it to tailor its process to these new responsibilities.
26. The Consent and Capacity Board be provided with additional powers, including enabling it to provide directions with respect to the wishes of the person and to determine compliance of substitute decision-makers with obligations under the Substitute Decisions Act.
27. The Ontario Government explore the benefit of giving the Public Guardian and Trustee discretion, upon the completion of a “serious adverse effects” investigation, to forward a written report to the Consent and Capacity Board, which would be empowered to order training, mediation or regular reporting.
28. The legislation be amended to make it an offence to impede or interfere with “section 3 counsel” in the fulfilment of their responsibilities.
29. Clear qualification standards, including minimum training, be developed for lawyers appointed as “section 3 counsel”.
30. Legal Aid Ontario consider enhancing its initiatives in this area, including expansion of funding of matters under the Substitute Decisions Act and additional supports for lawyers who provide Legal Aid funded services in this area.
31. If adjudication for matters under the Substitute Decisions Act remains with the courts, expansion of access to specialized mediation in this area be explored.
32. In preparing the Consent and Capacity Board for an expanded role, consideration be given to whether more flexible time limits, to permit greater scope for alternative dispute resolution, should be available for some specific matters.
33. The Consent and Capacity Board develop a pilot project to explore the possibilities of a specialized mediation program for selected types of applications.
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