A. Introduction and Background
The law related to legal capacity and decision-making is unavoidably extensive, elaborate and multi-layered and, for some people, perplexing, dealing as it does with difficult ethical and practical issues, and attempting to balance needs of diverse groups across a range of circumstances. The law attempts to incorporate nuance and to be responsive to fluctuating needs. While this nuance and responsiveness is in many ways a benefit, it does make the law more challenging to implement successfully. During consultations, all stakeholders pointed to shortcomings in understandings of the law and in the skills necessary to apply it as key issues to be addressed in any review. The need for improvements in education and information has therefore been a theme throughout this project, and arises in every chapter of this Interim Report. This chapter does not attempt to replicate this material, but to provide a focussed examination of some key elements.
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 this Interim Report, particularly including those related to monitoring and oversight, and dispute resolution and rights enforcement.
B. Current Ontario Law and Practice
1. Understanding Needs for Education and Information
In considering reforms to promote better understanding (and therefore better implementation) of the law, the needs of four groups must be taken into account:
· 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 well as the most effective methods of reaching them.
Persons directly affected by the law will be the most profoundly affected by the quality and extent of the information they receive about the law, as this will substantially shape their ability to make meaningful choices in this context and to protect and enforce their rights. Except for those persons granting powers of attorney who have sophistication in handling affairs or easy access to professional assistance, this is also the group that will likely have the most challenges in receiving adequate information, or even in realizing that they could benefit from information. The conditions affecting their legal capacity will affect their ability to understand and appreciate information about the law itself. Many persons directly affected by the law will require accommodations or supports in receiving or accessing information. As well, they will very often encounter the law at a time of crisis, when it is difficult to seek out and process information.
Persons who act as substitutes or supporters will, for the most part, be family members or friends with no particular expertise in understanding or applying the law. Many will also be acting as caregivers, and in most cases, they will not be paid for their activities. In their roles, they will be often required to navigate extensive processes or intimidating institutions, understand novel medical or financial concepts, develop skills as advocates, and manage difficult family or professional relationships. In the LCO’s consultations, these family members often emphasized the challenges of their roles, and the lack of supports available to them.
Third parties most often do not have issues surrounding legal capacity and decision-making as a core element of their enterprise. It will in most cases be front-line workers with no particular skill set in this area who will directly encounter issues related to legal capacity and decision-making, and who must identify potential issues and apply correct procedures. It is also at the front-lines where pressures related to limited resources, competing needs and the tension between standardization and responsiveness to individual needs will be most acute. Large organizations, such as financial institutions or hospitals, will generally develop internal expertise, perhaps including policies, protocols or guidelines. Smaller organizations may not have the ability to develop these kinds of internal resources. It is important to emphasize that third parties are, by and large, well-intentioned in their efforts to serve their clients, and that they may be operating in contexts of considerable constraint and difficulty. There may be no simple solutions to the ethical, practical or resource challenges that these institutions or professionals may face in providing services to what may at times be their most vulnerable clients, although opportunities do exist to deepen provider competencies in this area through existing institutions and programs.
Those professionals who must apply the law as part of their professional duties must deal with the most complicated and challenging issues under the law, and have the most significant responsibility for ensuring the effective and appropriate implementation of the law. This group includes the professionals who carry out the different forms of assessment of capacity; lawyers who assist with the preparation of powers of attorney or with resolving disputes arising under the law; and hospital or long-term care home staff who develop internal policies and procedures for addressing these issues.
2. Some Legislative History: The Advocacy Act Requirements
When the current legislative scheme was initially proposed, it contained three statutes: the Substitute Decisions Act, 1992 (SDA), the Consent to Treatment Act (the predecessor to the Health Care Consent Act, 1996) and the Advocacy Act. The Advocacy Act is described at length in the Discussion Paper, Part Four, Ch III.B. For the purposes of this discussion, it suffices to note that the Advocacy Act and the accompanying provisions in the SDA and Consent to Treatment Act made extensive provision for rights advice. At key transition points in the lives of persons affected by the law where important rights were at stake, advocates were made responsible for providing information and otherwise interacting with the individual in various ways, including the following:
· notifying the individual of the decision or determination that had been made about her or him;
· explaining the significance of the decision or determination in a way that took into account the special needs of that person;
· explaining the rights that the individual had in that circumstance, such as a right to appeal the decision or determination; and
· in some cases, ascertaining the wishes of the individual (e.g., whether he or she wished to challenge the decision or determination) and to convey those wishes to the appropriate body (e.g., the Public Guardian and Trustee).
Action on these decisions or determinations could not be taken until the advocate had carried out these duties, or had made efforts to do so and had been prevented, for example by contravention of their rights of entry. This role was engaged in the following situations, among others:
· the appointment of a statutory guardian of property following an examination under the Mental Health Act;
· the appointment of the Public Guardian and Trustee (PGT) as a temporary guardian following an investigation into serious adverse effects;
· applications for validation or registration of powers of attorney for personal care;
· applications for court-appointed guardianships;
· court orders for assessment of capacity, including orders for apprehension of the individual to enforce assessments;
· findings of incapacity with respect to treatment made within a psychiatric facility;
· findings of incapacity with respect to “controlled acts” in a non-psychiatric facility;
· applications to the CCB for directions regarding the prior expressed wishes of an individual; and
· applications to the CCB for permission to depart from the prior expressed wishes of an individual.
These requirements were removed in 1996, when the Advocacy Act was repealed and the Consent to Treatment Act replaced by the current Health Care Consent Act, 1996 (HCCA). While the current legislation contains some provisions related to the provision of information, they are minimal compared to what was originally contemplated.
3. Current Statutory Requirements
Currently, the SDA, Part III of the Mental Health Act (MHA) and the HCCA include the following requirements for information to be provided to affected individuals at a limited number of key transition points.
Assessing Capacity: Because an assessment of capacity can in a number of circumstances have very significant automatic effects on the individual’s status and choices, information about the legal effect of the assessment, the rights of the individual and the options available is crucial. The provision of rights advice and rights information in these circumstances was discussed at length in Chapter V, and will only be summarized here.
MHA examinations of capacity to manage property: those undergoing these examinations have a right to notice of the issuance of a certificate of incapacity, and to timely provision of rights advice by a specialized Rights Adviser. The Rights Adviser will provide information to the patient about the significance of the certificate and the right of appeal.
HCCA assessments of capacity to consent to treatment: a finding of lack of capacity must be communicated to the individual. Outside of psychiatric facilities, the form and content of the notice depends on the guidelines of the health regulatory college.
HCCA evaluations of capacity to consent to admission to long-term care or to personal assistance services: the HCCA does not require provision of information to the affected individual; however, the form for evaluators includes an information sheet that must be provided to the individual and a box to tick that the individual has been informed about the finding and the right to appeal.
SDA Assessments by designated Capacity Assessors: the individual must be provided with information about the purpose, significance and potential effect of the assessment, as well as written notice of the findings of the assessment. Where a statutory guardianship results, the PGT must inform the individual that it has become the guardian and that there is a right to apply for review of the finding.
The significant shortfalls in the rights information regime under the HCCA were discussed at length in Chapter V, and were the subject of several draft recommendations for reform. It is also worth noting that even where information is provided to individuals, they may face many barriers to acting on that information without further assistance, whether because of disabilities or impairments, a lack of supports or the constraints of their environments.
Roles and responsibilities of Substitute Decision-makers (SDMs): the SDA requires SDMs appointed either through a power of attorney (POA) or a guardianship, to explain their powers and duties to the affected individual. Section 70 of the SDA requires a proposed guardian in a court application for guardianship to include in the application a signed statement either that the person alleged to be incapable has been informed of the nature of the application and the right to oppose it, or explaining why this was not possible. Sections 32(2) and 66(2) require SDMs under the SDA to explain to the individual the powers and duties of the guardian (although not, notably, any means of rights enforcement for the individual).
There is no formal mechanism for ensuring that the duties under sections 32(2) and 66(2) are carried out. Further, while the PGT can be expected to thoroughly understand the “powers and duties” of an SDM, in many cases the family and friends who are acting as SDMs are not conversant with their statutory responsibilities: they will neither be aware of their duties to explain them, or in a position to accurately describe them. And there will be some minority of SDMs who are abusive, neglectful or exploitive. In these situations, which are precisely the ones where the individual will most require understanding of legal rights and recourse, the SDM is very unlikely to detail them.
The currently statutory regime does not include formal requirements or supports to inform or educate SDMs, or third parties. For example, persons appointed under a POA need not even be informed that they have been appointed, and there are no mechanisms for ensuring that attorneys understand their role. While the process for becoming a guardian is more rigorous than that for a personal appointment, there are no requirements or formal supports to assist them with gaining the information and developing the skills that are necessary.
4. Non-statutory Provision of Education and Information
There has been considerable effort by a variety of institutions to provide affected individuals, family members and SDMs, professionals and third parties with the information required for the effective functioning of this area of the law.
Educational institutions: Many of the service providers or professionals charged with implementing or supporting the implementation of the law must meet certain educational requirements prior to entering their professions. This is true for social workers, health professionals and lawyers, for example. Educational institutions may provide information related to this area of the law, either as mandatory or voluntary course material.
Professional regulatory bodies: Professional regulatory bodies play an important role in providing information and education to their members across a wide range of subject areas. Professional regulatory bodies, such as the health regulatory colleges or the Law Society of Upper Canada, may require practitioners to demonstrate specific knowledge or skills to join the profession, and may provide ongoing education and training opportunities. They may develop policies and guidelines of practice that are binding on their members and may be the subject of complaints where there is non-compliance.
Employing institutions: For professionals working in large institutions, such as hospitals, long-term care homes, Community Care Access Centres, or large social service agencies, their implementation of the law will be significantly shaped by their employer. Institutions may develop internal policies dictating how the law is to be interpreted and applied, create internal training programs or resources, or provide access to information and advice through internal legal or ethics departments.
Government mandated training and education: The current statutory regime requires those carrying out the various forms of formal capacity assessments to be members of specified professions, an