Background
This project grew out of the Law Commission of Ontario’s (LCO) two “Framework” projects on law, policy and practice as they affect older adults and persons with disabilities, respectively. A project proposal was developed with the assistance of a small expert group, and in the fall of 2011 the Board of Governors approved a project to re-examine and make recommendations for reforms to Ontario’s laws regarding capacity and guardianship. The project is intended as a mid-sized project, for completion within two-and-a-half to three years of the commencement of work. The scoping process for this project began in the fall of 2012. Considerable preliminary research was undertaken. As well, the Project Head conducted approximately 70 interviews with individuals and organizations representing a wide range of perspectives, including the private bar, legal clinics, community and advocacy organizations, government ministries and agencies, health care service providers, academics and others.
Current Legislation Scheme
Ontario’s current legislative scheme is the result of extensive research and consultation conducted in the late 1980s. This law reform process resulted in three interlocking statutes, the Health Care Consent Act (HCCA), the Substitute Decisions Act (SDA) and the Mental Health Act (MHA). The HCCA and the SDA came into effect in the early 1990s and were new statutes. They were originally accompanied by the Advocacy Act, which was soon repealed. Some significant areas of the law continue to be governed by common law. Also important in understanding this statutory scheme are the Statutory Powers Procedures Act, the Long Term Care Homes Act, 2007 and the Personal Health Information Protection Act, 1994.
Many interviewees suggested that the LCO should not “start from scratch” in developing its recommendations, but should look to existing foundations, both in the current statutes and in innovative ideas and practices to be found in various pilot projects, lines of caselaw or community innovations, and attempt to build upon what is positive in these.
Applying the Frameworks: Implications
The application of the framework projects has the significant advantage of making the basis on which the LCO will develop and evaluate potential law reform proposals in this project clear and transparent from the outset. It also has several implications for the development of the project:
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The evaluation of the current law and potential law reform proposals will be based on the principles enunciated in the Frameworks;
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The analysis will be based on the eight-step structure adopted in the Frameworks;
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The project process will reflect the considerations set out in Step 2 (“Does the Legislative Development/Review Process Respect the Principles?”) of the Frameworks;
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A life-course analysis will be employed as part of the overall challenge of applying both Frameworks to this area of the law;
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A person-centred approach will assist the LCO in taking into account the ways in which individuals, with their multiple identities and complex experiences, encounter the law and transition between life stages; and
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Significant consideration will be given to understanding and addressing the “implementation gap” between the law as drafted and the law as applied.
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The concept of “progressive realization” will be applied in the development of recommendations.
Opportunities, Risks and Constraints
Preliminary research and interviews identified a number of opportunities and constraints for this project, including:
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Increased interest in this area of the law, both domestically and internationally, creating the opportunity to build on other projects in Canada and abroad.
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Broad and strong interest in law reform to Ontario’s laws in this area, such that many organizations and individuals offered assistance through shared information or consultation supports.
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The importance of taking into account the impact of resource constraints at all levels – in the courts, the healthcare system, government agencies and tribunals, the legal aid system, the community agencies that support affected populations, family caregivers and the affected individuals themselves.
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The extent and complexity of the issues related to legal capacity, decision-making and guardianship. The LCO will aim to develop a coherent and consistent approach to law reform on the key issues identified through this preliminary scoping, but not all sub-issues may be addressed.
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There are in some areas very divergent views about the goals and approaches for reform: a significant contribution that the LCO can make through this project is to foster connections and discussions on these important issues.
Themes and Contexts for the Project
The LCO will take the following themes and contexts into account in shaping its approach to the project and its recommendations:
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The expectations for and roles of families and close personal relationships;
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The public/private divide and the appropriate role of government with respect to providing supports or interventions.
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Addressing the severe lack of information and understanding of this area of the law, across all sectors.
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Reducing the complexity, fragmentation and cumbersomeness of the system surrounding determination of legal capacity and the regulation of decision-making.
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Considering the role of advocacy and supports in increasing access to justice in this area for individuals who may be vulnerable or marginalized in a variety of ways.
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Addressing concerns about abuse by those exercising powers through guardianship or powers of attorney.
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Taking into account the particular ethical and emotional challenges associated with end of life issues.
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Addressing the attitudinal barriers that marginalize persons whose decision-making capacity is impaired and put them at risk under the law.
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Considering what role technology might play in increasing access to justice in this area, as well as how technological trends may affect the future of this area of the law.
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Considering the complex issues associated with privacy, particularly when paired with the desire for greater transparency, monitoring and accountability.
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Taking into consideration how multiple forms of diversity may influence understandings of decision-making, end-of-life, aging and disability, may shape the manifestation of decisional capacity, or may affect how an individual accesses the law.
Key Issues Identified for the Project
The following broadly defined issues were identified repeatedly in both the preliminary research and in the interviews. It should be noted that they are all linked, and contain multiple sub-issues.
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Models of decision-making, including the desirability and practical implications of various decision-making models, including substituted, supported, assisted and co-decision-making approaches.
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Assessment of capacity, including definitions of capacity under the SDA and HCCA, and systems and processes for assessment.
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Benefits and limitations of “planning ahead” through powers of attorney and advance care planning, including the pervasive lack of understanding (and related misuse and abuse of) of these powerful legal tools by those creating, exercising or applying them.
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Monitoring, accountability and the prevention of abuse, including failure to comply with legislated duties by institutions and substitute decision-makers (however appointed), responsibilities and mechanisms for identifying non-compliance and abuse, the enforcement mechanisms and remedies, access to justice issues for those who lack or may lack legal capacity, and potential reforms to increase transparency.
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Dispute resolution, including exploration of streamlining or simplification of systems and the use of alternative dispute resolution mechanisms.
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Alternatives to guardianship, including greater use of partial guardianship and alternatives to the current guardianship system (under both supported and substituted decision-making models).
Limitations on the Project Scope
Through this process, the LCO has identified the following limitations on the project scope:
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The project priority will be to focus on legal capacity, decision-making and guardianship as primarily legislated through the SDA and HCCA, but the provisions of the MHA will be considered in order to maintain the coherence of the three statutes and to take into account the complex experiences of persons with mental health disabilities under the three statutes.
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This project will focus on the statutory core of the SDA and HCCA, setting aside for the purposes of this project the issues raised by the common-law.
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While the project will take into account the interactions between the civil and forensic systems, this project will not specifically address issues in the criminal justice system.
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The focus of this project will be on the broader issues associated with legal capacity and decision-making, and not on specific issues, such as capacity to consent to sexual activity or substitute decision-making and reproductive rights.