A.     Introduction and Background

Chapter IV touched on the issue of alternatives to substitute decision-making as part of its discussion of challenges to current approaches to the concept of legal capacity. Because concepts of legal capacity are so closely tied to particular approaches to decision-making, while this Chapter deals directly with the issue of alternatives to substitute decision-making, as well as substitute decision-making itself, it will refer back to some of the discussions and conclusions in Chapter IV. 

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 (SDA) and Health Care Consent Act, 1996 (HCCA), where a person does not meet the threshold for legal capacity and a decision is required, another person – a substitute decision-maker (SDM) – 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 (CRPD), which addresses the issue in Article 12 and was discussed in Chapter IV, has added urgency to the discussion. 

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. It is not possible in this limited space to thoroughly analyze all of the issues associated with models of decision-making. The literature is voluminous, and different legal systems have adopted a range of approaches. The Discussion Paper provides an overview in Part Three, Ch. I. This Chapter is focussed on the question of reforms to Ontario laws. It adopts as its basis the analytical framework suggested by the LCO Framework principles, and takes into account Ontario’s legal history and current context, the diversity of needs and circumstances, and the aspirations and concerns voiced through the LCO consultations. It sets out the key issues, including the debate regarding substitute and supported decision-making, identifies approaches that should form the basis of law reform related to these issues, and finally makes a number of draft recommendations for changes to the law.  

It is helpful to keep in mind, when considering laws related to legal capacity and decision-making, two aspects of these laws: the realities of making decisions with or on behalf of someone else; and the determination of who is legally liable for any decisions that are reached. 

Decision-making practices include all those values and daily practices with which those who surround a person with impaired decision-making abilities approach the practical realities of reaching particular decisions. This might include, for example, processes such as consulting with the person affected or others who have a close relationship with the person. It might also include the criteria or considerations which are brought to bear in the process, such as what the affected individual’s goals are or have been, what might produce the best quality of life for the affected individual, and so on. Decision-making practices take place, by and large, in the private sphere and are inherently relatively informal. By their nature, they are difficult to monitor and to regulate, tied up as they frequently are in family and social histories and dynamics. Whether these informal interactions are on the whole positive and supportive of the achievement of autonomy, inclusion, dignity and security for the individual, or whether they are negative or outright abusive, in most cases only becomes visible when the family unit interacts with the public realm. In some cases, such interactions are quite rare.

Legal accountability frameworks come into play in those circumstances where decisions reached through the decision-making practices referenced above must be put into effect in the public sphere, for example by entering into a contract or reaching an agreement regarding services. As part of its broader role in regulating such matters as the validity of contracts, professional standards and institutional responsibilities, the law also addresses how contracts may be entered into and consent provided where an individual lacks legal capacity, including who may be responsible for entering into agreements or providing consent to third parties, and who will be held accountable and liable for these decisions. 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.   
 

B.    Current Law in Ontario

It is worthwhile to remember that in most situations where individuals have impaired decision-making abilities that may amount to legal incapacity should an assessment be conducted, the law is not invoked. In some cases, individuals are not in situations that require significant decisions involving interactions with large institutions or professionals whose accountability and regulatory environments require legal clarity and certainty. In other cases, institutions informally accommodate families. By their nature, informal arrangements are flexible and adaptable to the particular needs of an individual. In most cases, these types of informal arrangements work well, although they are accompanied by a certain degree of risk.

Where the law is invoked, Ontario has a modern and carefully thought-out substitute decision-making system. The term “substitute decision-making” is used to describe a range of legal systems and approaches: to treat these various systems as interchangeable and subject to a uniform critique tends to lead to misunderstandings. It is helpful to keep in mind that substitute decision-making systems have evolved over time, in response to changing understandings and circumstances. However, there are some core elements, which are briefly listed below. 

1.     Intervention is only permitted where an individual has been found to lack legal capacity. Persons who have legal capacity have the right to make decisions independently, regardless of the wisdom of those decisions.

2.     Where an individual is found to lack legal capacity and a decision is required, a substitute decision-maker will be appointed to make the decision(s) on behalf of the individual. The substitute decision-maker (SDM) is thereafter held responsible for his or her actions in this role, and may be liable for damages for breach of duties, although it should be noted that the exact nature of the duties and the forms and level of accountability vary widely. The SDM is to act on the individual’s behalf and for that person’s benefit, although the specifics of how this is to be done again vary widely.

3.     Substitute decision-makers may be appointed by the individual or externally. SDMs may be appointed in a variety of ways. They may be appointed by the individual him or herself, through a planning document, such as a power of attorney. They may be appointed externally (as with a guardianship). They may also be appointed through a priorized list (as with Ontario’s system for treatment decisions). Ontario includes appointments through all three of these mechanisms. 

4.     There is a preference for close relationships in the appointment of substitute decision-makers. While most systems make some provision for appointment of institutions or professionals where no family or friends are available to take on this role, there is a preference for close relationships as the foundation of the role.

Ontario’s approach to substitute decision-making includes the following key elements, among others:

Cognitive capacity threshold: As is outlined in Chapter IV, the threshold for legal capacity is based on the individual’s ability to “understand and appreciate” the information relevant to a particular decision. While legal capacity may evolve or fluctuate, and while it is specific to particular decisions or types of decisions (that is, it is not “plenary”), it is an all-or-nothing quality. A person either has legal capacity to make a particular decision or does not. Where an individual does not have legal capacity to make a particular decision or type of decision, a surrogate (the “substitute decision-maker” or SDM) will make the decision on behalf of that person, taking with it related responsibilities. 

Opportunities for individuals to choose or have input in the selection of a substitute: Ontario’s legislation aims to make it relatively simple and inexpensive for individuals who are legally capable to select their own SDM for property, personal care or treatment decisions through the creation of powers of attorney (POA). Ontario places relatively few restrictions on the content of POAs or requirements for their valid creation. As well, when guardians are identified, either through the statutory guardianship process’s replacement provisions or through court-appointments, the Public Guardian and Trustee (PGT) and the court respectively are required to consider the wishes of the person who is being placed under guardianship. 

Focus on trusting relationships as the foundation of substitute decision-making: Ontario’s statutory scheme includes a number of mechanisms intended to give priority in identifying SDMs to existing relationships presumed to be based on trust and intimacy. For example, the hierarchical list of SDMs in the HCCA gives priority, where an SDM does not already exist, to family members. Similarly, the replacement provisions for guardianships under the SDA focus on family members. 

Duties of SDMs to promote participation and consider wishes and preferences: For the most part, Ontario takes what some have termed a “substituted judgment” approach to substitute decision-making. In this approach, the SDM attempts to place her or himself in the individual’s shoes, applying the individual’s values and preferences to the degree that they are known and understood, and to make the decision that the individual would make if able to understand and apply all of the relevant information. Under the SDA, both attorneys under a POA and guardians are directed to promote the participation in decision-making of the person, as well as to consult with others who have supportive relationships with the individual. For personal care decisions under the SDA and for all decisions under the HCCA, SDMs must consider the “prior capable wishes” of the individual, the values and beliefs held while the person was capable, and current wishes where they can be ascertained. 

Domain and decision-specific approaches: SDMs are appointed for particular decisions or types of decisions. A person may have legal capacity to make some decisions and not others. Under the SDA, SDMs may be appointed for either property or personal care. Further, personal care guardians may be appointed for only some specific elements of personal care, which includes health care, nutrition, shelter, clothing, hygiene or safety. Grantors of POAs may of course tailor the scope of authority of the attorney they appoint. Under the HCCA, capacity is assessed in relation to the ability to make a particular decision only, and the scope of authority of the person appointed is restricted to that particular area.  

Procedural protections for persons who may lack legal capacity: While protections may not be complete or ideal,