A.    Introduction and Background

In the LCO’s preliminary consultations for this project, one of the dominant areas of concern was access to law, particularly in relation to the processes and dispute resolution mechanisms under the Substitute Decisions Act, 1992 (SDA). There was a strong sense that these mechanisms are often costly, complex and difficult to access, and that as a result, the rights and responsibilities under the SDA are not realized as intended. The results of these initial consultations were confirmed in the responses to the LCO’s fall 2014 public consultations, with participants conveying a message that significant reform in this area is warranted.

It should be kept in mind that effective access to the law will affect every other aspect of the legal capacity, decision-making and guardianship system. Lack of accessibility may create incentives for families to adopt riskier informal approaches or to attempt creative solutions to their problems which are not in harmony with the intent of the legislation, for individuals to abandon attempts to obtain their rights, or for parties with superior access to the resources necessary to navigate the system to misuse it for their own ends. 

Concerns regarding the appropriate implementation of the rights and responsibilities under the Health Care Consent Act, 1996 (HCCA) tend to focus on the quality of assessments of capacity under that Act, and on the appropriateness and effectiveness of procedural protections at the point of determinations of legal capacity, most particularly regarding rights information for persons found legally incapable under the HCCA. These concerns are dealt with at length in Chapter V of this Interim Report. While there were particular critiques of the operations of the Consent and Capacity Board (CCB), such as the ongoing debate as to whether the CCB is overly focused on legal rights or insufficiently so, and an interest in exploring greater use of alternative dispute resolution, the sense was that overall, the flexibility of the HCCA appointment mechanisms and the existence of the CCB as an accessible administrative tribunal providing speedy and relatively responsive adjudication, is an appropriate approach. This Chapter will therefore mainly focus on concerns regarding processes for dispute resolution and rights enforcement under the SDA. 

All of the adjudicative processes under the SDA, including processes for appointment, variation and termination of guardianships, and the provisions for passings of accounts and seeking directions, are closely tied together, as are the administrative investigation processes under the mandate of the Public Guardian and Trustee (PGT). These will therefore all be addressed together in this Chapter, as mechanisms by which individuals access the law. Chapter IX will address some specific concerns and proposals for reform related to external appointment processes: as these are issues related to the substantive powers of adjudicators, rather than access mechanisms, they are dealt with separately, although they are connected.

 

B.    Current Ontario Law

Dispute resolution and rights enforcement related to legal capacity, decision-making and guardianship takes place in many venues in Ontario, including through internal institutional policies and procedures (for example, the Patient Advocacy Offices that exist in many hospitals), sectoral complaints mechanisms such as the Ombudsman for Banking Services and the formal complaints mechanisms available through the health regulatory colleges. However, the core of Ontario’s dispute resolution and rights enforcement mechanisms for legal capacity and decision-making lies with the CCB, the Superior Court of Justice, and the “serious adverse effects” investigations process that lies with the PGT. These mechanisms are described below. 

1.     The Role of the Consent and Capacity Board

The mandate of the CCB extends to a number of statutes, including the Mental Health Act, the Personal Health Information Protection Act, 2004, and the Mandatory Blood Testing Act, in addition to its vital role in overseeing the application of Ontario’s laws related to legal capacity and consent. In particular, the CCB may hear the following applications:

·       To review a finding of incapacity, whether by a health professional with respect to treatment,[285] an evaluator with respect to admission to care facilities or consent to personal assistance services provided in a long-term care home,[286] or by a Capacity Assessor with respect to property;[287]

·       To appoint a decision-making representative with respect to decisions to be made under the HCCA;[288]

·       For permission for an SDM to depart from the prior capable wishes of a person who lacks legal capacity;[289]

·       To determine whether an SDM is acting in compliance with the requirements of the HCCA as to how decisions are to be made;[290]

·       For directions when the appropriate application of the HCCA with respect to a required decision is not clear; and[291]

·       For review of certain specified decisions that have significant impacts on the rights of the person, such as admission to a treatment facility and admission to a secure unit in a care facility.[292]

In practice, the vast majority of the applications that the CCB addresses are reviews of determinations that a person is incapable with respect to treatment, or findings that an individual should be admitted or remain admitted at a psychiatric facility on an involuntary basis.[293] In many ways, the CCB’s activities remain highly focused on mental health law, and this is reflected in the composition and culture of this tribunal. 

Members of the CCB may hear applications alone or in panels of three or five. Board members include lawyers, psychiatrists and public members.  The CCB’s Rules of Practice take a broad approach to the admission of evidence: the Board may “admit any evidence relevant to the subject matter of the proceeding”, and may direct the form in which evidence is received.[294] The legislation gives priority to expeditious resolutions: hearings must commence within seven days of an application and decisions rendered (and summary reasons provided to the parties) within one day of the conclusion of the hearing.[295] Decisions of the CCB may be appealed to the Superior Court of Justice on questions of both fact and law.[296] 

The effectiveness of the CCB is supported by the requirements for rights advice under the MHA, described in Chapter V, and the widespread provision by Legal Aid Ontario (LAO) of counsel without cost for individuals whose rights are at issue before the CCB, as is detailed later in this Chapter. 

 

2.     The Role of the Superior Court of Justice

The processes for the appointment, variance and termination of guardianships are described at some length in Chapter IX, and so will not be detailed here. There are two methods by which an individual may enter into guardianship: an administrative statutory guardianship process, when someone is found incapable under Part III of the MHA or section 16 of the SDA, available only for property matters; and a court-appointment process, for guardianships of property or of the person, initiated by anyone under section 22 of the SDA or section 55 of the SDA, respectively. Most appointments of guardians are currently through the statutory guardianship process: the Superior Court of Justice currently appoints between 200 and 260 guardians per year.[297] There are summary procedures for guardianship appointments and terminations, but they are used infrequently. It is important to keep in mind that while appointments, variance and terminations of guardianship orders may be relatively straightforward, these orders may also be sought as part of broader disputes, in some cases involving abuse or misuse of funds. 

The Superior Court of Justice also has an important role in providing oversight of the activities of SDMs and resolving questions of interpretation. Notably, the Court may hear applications for the passing of all or part of the accounts of either a guardian or attorney for property. The Court also has broad powers to “give directions on any question arising in connection with the guardianship or power of attorney” [emphasis added] for either property or personal care.[298]

Significantly, the Court has broad remedial powers when addressing applications for directions or for the passing of accounts. Upon an application for directions, the Court may “give such directions as it considers to be for the benefit of the person and his or her dependants and consistent with this Act”.[299] Upon the passing of accounts of an attorney, the Court may direct the PGT to apply for guardianship or temporarily appoint the PGT pending the determination of the application, suspend the POA pending the determination of the application, order a capacity assessment for the grantor, or order the termination of the POA. Similarly, with an application to pass the accounts of a guardian, the Court may suspend the guardianship pending the disposition of the application, temporarily appoint the PGT or another person to act as guardian pending the disposition of the application, adjust the compensation taken by the guardian or terminate the guardianship.[300]

 

3.     Investigations by the Public Guardian and Trustee

The administrative complaints and investigation powers under the SDA are an important part of Ontario’s overall system for addressing legal capacity, decision-making and guardianship issues, and are highly valued by stakeholders. It should be noted that the investigative function of the PGT is a significant advance on what is available in many other jurisdictions, which do not have similar administrative investigative processes specific to legal capacity and decision-making issues and instead rely entirely on criminal or civil judicial processes. On the other hand, many jurisdictions do have “adult protection” legislation, which creates broad powers of intervention into the affairs of adults, whether they are legally capable or incapable: it is the LCO’s observation that some of the debate regarding the PGT’s complaint and investigation powers results either from a confusion with or a desire for such a broader regime. 

Sections 27 and 62 of the SDA provide the PGT with the duty and the powers to investigate “any allegation that a person is incapable” with respect to either property or personal care and that “serious adverse effects are occurring or may occur as a result”. 

The SDA gives the PGT significant discretion in determining the steps necessary for an investigation, as well as powers of entry and access to records for the purposes of carrying out these investigations.[301] 

If the results of the investigation reveal reasonable grounds to believe that a person is incapable and that serious adverse effects, as defined in the legislation, are or may be occurring, the PGT shall apply to the court for a temporary guardianship. The court may appoint the PGT as guardian for a period of not more than 90 days, and may suspend the powers of an attorney under a POA during the period of the temporary guardianship. The order must set out the powers and any conditions associated with the temporary guardianship. At the end of the period of temporary guardianship, the PGT may allow the guardianship to lapse, request the court to provide an extension or apply for a permanent guardianship order. 

The connection of the complaint and investigation function with the potential outcome of guardianship by the PGT is worth emphasizing: the only action that the PGT is statutorily empowered to take as a result of an investigation is an application for temporary guardianship, which, although temporary, is nevertheless a very significant intervention in the life of the affected individual. The legislation implicitly therefore does not contemplate investigations in any but the most serious matters. 

In the 2013-2014 fiscal year, the PGT’s Investigations Unit received over 10,000 recorded communications. Most of these were referred elsewhere for appropriate action, including to family, the Capacity Assessment Office, private lawyers, Community Care Access Centres, health practitioners, and the police or other law enforcement.  As a result of these communications, 239 investigations were o