VI. PROTECTING AUTONOMY AND THE EQUAL RIGHT TO LEGAL CAPACITY IN THE FACE OF SERIOUS ADVERSE EFFECTS

VI. PROTECTING AUTONOMY AND THE EQUAL RIGHT TO LEGAL CAPACITY IN THE FACE OF SERIOUS ADVERSE EFFECTS2017-03-03T18:35:37+00:00

People with disabilities and older adults face disproportionately high rates of abuse and neglect.[214] The traditional approach to safeguarding against abuse and neglect for this group is to define them as ‘vulnerable’ or in need of protection, based on their demographic characteristics.  This has led in many instances to an overly-paternalistic approach which has undermined individual autonomy.  Our assessment is that current adult protection and mental health laws do not effectively meet the needs of people with disabilities and older adults in preventing and protecting against abuse and neglect, while at the same time promoting their full right to legal capacity.

H. Archibald Kaiser argues that, consistent with the social model of disability, the focus of mental health statutes must shift from coercion to the provision of supports and services.[215]  More specifically, we identify three main failures of legal frameworks and service delivery systems in relation to mental health services and in cases involving abuse and neglect.  These cases pose particular risks to the equal exercise and enjoyment of autonomy and legal capacity for people with disabilities who may be at risk of or cause harm to themselves or others:

·           There are significant gaps in access to and availability of appropriate community-based supports for people with intellectual, cognitive and/or psychosocial disabilities.  Unfortunately, solely because of a lack of such supports, many people end up in institutional care and/or, under current mental health laws, involuntarily placed in a psychiatric facility.  Both of these options, in our assessment, unduly restrict autonomy in the name of protection of individuals and the public.

·           There is a lack of appropriate safeguards to ensure that in situations of abuse, neglect, or harm to oneself or others, appropriate supports are provided and that procedures are in place to ensure responses that more effectively balance autonomy and protection interests.

·           Mental health law and service delivery are largely discriminatory in light of the CRPD.  That is, assessment of a ‘mental disorder’ is systematically used in legislative frameworks and service delivery to make determinations that restrict legal capacity.  These provisions and practices violate the CRPD requirements to recognize and protect the right to legal capacity without discrimination on the basis of disability.  Under the CRPD, disability cannot be used as a justification for restricting liberty and autonomy.

This section outlines a definitional and institutional framework to address these issues, grounded in a re-evaluation of current adult protection and mental health laws.

 

A.        Definition of Serious Adverse Effects and Who is Affected

While the terms ‘abuse’ and ‘neglect’ are used to describe the experience of people with disabilities and older adults, the terms are not concrete nor specific enough to guide interventions related to decision-making supports and exercise of legal capacity.  Thus we have decided to use the term found in Ontario’s Substitute Decisions Act for the purposes of describing when and how interventions should be triggered.  The term used in the Act is “serious adverse effects.”  This term has the advantage of not confusing presumed intent with outcome; that is, the focus is on what the person actually experiences.  As well, it does not trigger interventions on the basis of presumed risk in a situation, as mental health law usually does, without evidence that actual effects are occurring or may occur as a result.  In these ways, the term “serious adverse effects” constrains the discretion for intervention that many other terms allow, and thus more effectively protects autonomy.  The challenge is to develop a scheme of safeguards guided by this trigger that at the same time protect against what are unacceptably high rates of abuse and neglect of older adults and people with disabilities.

‘Serious adverse effects’ is defined in Ontario’s Substitute Decisions Act in relation to both property and personal care.  The definitions address two situations as follows:

·         Loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for dependants[216]

·         Serious illness or injury, or deprivation of liberty or personal security[217]

We would enhance the definition of serious adverse effects to include the criteria currently in Ontario’s Mental Health Act for involuntary committal to a facility for the purposes of psychiatric assessment.  Subection 15(1) of the Act states:

Where a physician examines a person and has reasonable cause to believe that the person,

(a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

(b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

(c) has shown or is showing a lack of competence to care for himself or herself,

 

and if in addition the physician is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

(d) serious bodily harm to the person;

(e) serious bodily harm to another person; or

(f) serious physical impairment of the person,

 

the physician may make application in the prescribed form for a psychiatric assessment of the person.[218]

 

Drawing on the criteria in these two statutes[219], and with some revisions, we suggest a definition of serious adverse effects as follows:

A situation of serious adverse effects occurs when a person, as a result of his/her actions or those of others:

a)    Experiences loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for dependants; or

b)    Experiences serious illness or injury, and deprivation of liberty or personal security; or

c)    Has threatened or attempted or is threatening or attempting to cause physical and/or psychological harm to himself or herself; or

d)    Has behaved or is behaving violently towards another person or has caused or is causing another person to fear physical and/or psychological harm from him or her.

According to this definition serious adverse effects can attach to the individual in question as well as to others who are directly involved in the situation:  people who experience harm as a result of an individual’s actions; people who are attempting to support the individual; and/or people who are otherwise directly affected by the situation.  Responses and interventions to situations of serious adverse effects should take all of these individuals into account, while at the same time assuring the legal capacity of the individual in question.

 

B.       Adult Protection and Mental Health Laws: A Re-Evaluation of Current Responses to Serious Adverse Effects

In determining the appropriate framework for addressing situations of serious adverse effects, the principles of respect for choice and personal dignity, including rights to privacy and dignity of risk, always need to be balanced with the duty to ensure safety.  However, the balancing of these principles in both adult protection and mental health laws often tilts much too far in the direction of paternalism. The framework we present here is meant to redress this imbalance.

The historical approach to safeguarding against abuse and neglect for people with disabilities and older adults has been to define these groups as in need of protection.  Abuse and neglect legislation was designed to allow the state to intervene to take care of people.[220]  In general, it allows for state intervention in an adult’s life to provide a range of health, social and other services.[221] This has led in many instances to an overly-paternalistic approach which has undermined individual autonomy.  In the words of the Supreme Court of Canada, “[t]he corollary of a judicial determination that an adult is in need of protection is a corresponding limitation on that adult’s autonomous decision making and liberty.[222]

Nonetheless, abuse and neglect legislation has evolved in Canada over time, since its introduction in the 1970s.[223] While a ‘protectionist model’ still exists,[224] models in some jurisdictions focus more on an adult’s right to live at risk.[225]  While some laws address abuse and neglect in comprehensive, discrete legislation, others are more limited in scope.[226]

An example of overly paternalistic adult protection legislation is Nova Scotia’s Adult Protection Act, which is based on a best interests model.[227]  Subsection 9(3) is illustrative and states as follows:

Where the court finds, upon the hearing of the application, that a person is an adult in need of protection and either

 

(a) is not mentally competent to decide whether or not to accept the assistance of the Minister; or

 

(b) is refusing the assistance by reason of duress,

 

the court shall so declare and may, where it appears to the court to be in the best interest of that person,

 

(c) make an order authorizing the Minister to provide the adult with services, including placement in a facility approved by the Minister, which will enhance the ability of the adult to care and fend adequately for himself or which will protect the adult from abuse or neglect.

 

The concern about the above provision is that there is no definition of ‘mentally competent’ and nor is there any indication of how ‘mentally competent’ is to be assessed or what the test is.  There is no mention of the role of supports in enhancing the person’s ability to address the situation without the intrusion of the Minister.  On its face, such legislation does not appear to be consistent with Article 12 of the CRPD.

Ontario’s approach to abuse and neglect tips the scale more in the direction of safeguarding autonomy.  However, its shortfall is the absence of legally mandated supports.  Thus, it too is not consistent with Article 12 of the CRPD.  Ontario has no specific abuse and neglect legislation.  Instead, Ontario’s ‘adult protection’ scheme is contained in its substitute decision-making laws (the Substitute Decisions Act).  The Public Guardian and Trustee has the responsibility to investigate situations where an individual is alleged to be incapable and serious adverse effects are occurring or may occur.[228]  The Public Guardian and Trustee may apply to the court for temporary guardianship.  However, the role of the Public Guardian and Trustee, in contrast to comprehensive adult protection legislation, does not involve the provision of health and social services.

In general, as Robert Gordon has observed, “Canadian adult protection legislation and adult protection systems, particularly those found in the Atlantic provinces, have been subjected to critical analysis and commentary.”[229]  Our assessment is that there is much room for reform and improvement of our laws that address abuse and neglect so as to give prominence to the role of the panoply of supports and to promote the full right to legal capacity to the maximum extent possible.

Mental health and capacity laws have long been associated with one another.  With respect to Ontario’s Mental Health Act,[230] and many other mental health laws in Canada and in jurisdictions around the world, similar concerns about the undermining of autonomy have been raised by ethicists, practitioners, legal experts, and consumer advocates.  The primary concern and critique relates to the provisions for involuntary admission.  Pursuant to Ontario’s Mental Health Act a person with a ‘mental disorder’[231] can be involuntarily admitted to a psychiatric facility if several conditions are met.[232]  The conditions relate to the person causing harm to him/herself or others or a lack of competence to care for him/herself in terms of both past behavior and future risk.    

Various rationales have been articulated justifying involuntary hospitalization of people with psychosocial disabilities.  These include the protection of society from harm and the state’s power to help those who cannot help themselves.[233]  As each of these justifications result in removing a person’s right to make their own decisions regarding psychiatric intervention, they must be balanced against the right to autonomy and self-determination.   The evolution of mental health laws in Ontario has illustrated many attempts to strike an appropriate balance, with some skepticism voiced as to whether this will ever be possible.[234]  As these laws have evolved over time, there has been an increasing recognition of the need to tailor them in the direction of promoting personal rights.[235]

With the ratification of the CRPD, we are forced to re-think the philosophical underpinnings of our mental health laws, and whether their purposes are justifiable.  More concretely, we must assess whether they conform with the CRPD.  There is renewed interest in reformulating mental health laws as there have been sweeping accusations that they are not in conformity with the CRPD.[236]  These accusations have perhaps been expressed most strongly by the World Network of Users and Survivors of Psychiatry (“Network”) and are set out in detail in an Implementation Manual the Network prepared in relation to the CRPD.[237]  While the analysis set out in the Implementation Manual is of relevance, it must be interpreted in the context of the laws of each province/territory in Canada.

Several articles of the CRPD have been cited for calling into question mental health laws.  These include articles relating to non-discrimination (Article 5), legal capacity (Article 12), liberty (Article 14), physical and mental integrity (Article 17) and torture or cruel, inhuman or degrading treatment (Article 15).[238]

Article 14 in relation to liberty and security of the person is of particular significance.  Most importantly, paragraph 1(b) states as follows:

States Parties shall ensure that persons with disabilities, on an equal basis with others:

 

(b)        Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.  [emphasis added]

 

Mental health commitment laws rely on disability (i.e. mental disorder) as an essential determining factor for involuntary hospitalization.  As such, disability is used to justify deprivation of liberty and is therefore in violation of Article 14.  Peter Bartlett has expressed the view that by virtue of Article 14(1)(b) “… much of the existing Ontario Mental Health Act is in violation” of the CRPD.[239]  For a similar reason, Ontario’s involuntary hospitalization provisions violate the non-discrimination article (Article 5), which prohibits all discrimination on the basis of disability.  In relation to Article 5, Bartlett goes on to say the following:  “We do not lock up other people on the basis of prospective dangerousness, even when there is cogent statistical evidence of their dangerousness:  why would we do so with people with mental disorder?”[240]

Enjoying legal capacity on an equal basis with others consistent with Article 12 recognizes a person’s right to make decisions and have those decisions respected.  It is difficult to see how imposed psychiatric intervention on people with psychosocial disabilities respects their right to make their own decisions.  Involuntary hospitalization, thus appears to violate Article 12.  Consistent with Article 12, decisions about whether to go to hospital should only be made by people themselves (with or without the assistance of supporters) or by facilitators, not by physicians.  If these decisions are made by physicians instead, people are deprived of their right to exercise legal capacity on an equal basis with others.[241]  This raises the question: how should mental health laws be designed so that people’s right to exercise legal capacity on an equal basis with others is respected?

Commentary has raised the possibility of fusing mental health and capacity laws in an attempt to address discriminatory mental health laws.[242]  Thus, incapacity would be a criterion for involuntary psychiatric intervention.  However, to say that it is acceptable to force psychiatric interventions on the basis of incapacity, rather than mental disorder, in our view, does nothing to lessen the loss of autonomy associated with our mental health laws.  People with disabilities have a right to exercise legal capacity on an equal basis with others.

The recommendations for reform of adult protection, mental health law, policy and practice which follow are consistent with the approach to legal capacity we set out in this paper, and more effectively, we believe, respect autonomy of people with disabilities.  The scheme of decision-making we propose in this paper allows for decisions for admittance to a medical facility for psychiatric assessment and/or treatment to be made either by individuals themselves in a legally independent status, or by individuals with their support representatives for those in a supported decision-making status, but only where the individual indicates in usual ways their acceptance of this decision.  Individuals in a facilitated status can be admitted for psychiatric assessment and/or treatment at the request of facilitators with certain safeguards.  Such safeguards are required to protect autonomy interests of individuals.  Our scheme removes the authority of physicians to involuntarily commit individuals to psychiatric facilities.

 

C.        An Institutional Framework for Addressing Serious Adverse Effects


Informed by the above analysis of adult protection and mental health law, we recommend that developing safeguards to address serious adverse effects should be guided by three foundational principles.  Firstly, respect for choice, personal dignity and integrity must be appropriately balanced against safety.  In doing so, it must be clear that measures to prevent and protect against serious adverse effects do not undermine respect for personal choice and personal dignity and integrity.  Secondly, individuals must have access to the supports they require to exercise their legal capacity in situations of serious adverse effects. Thirdly, the assessment of serious adverse effects must not be applied in a discriminatory manner.  When a person with a disability finds him/herself in the same situation as a person without a disability, the law should treat each of them in the same manner.  We must guard against the impulse to intervene when a person with a disability’s lifestyle does not accord with ‘social norms’.  When a person has a disability, there is often a tendency to view him/her as in need of protection and to cite behavior with which one does not agree as evidence of incapacity. 

The approach to serious adverse effects should apply to everyone equally, and not establish a set of obligations that apply only to those who meet some disability-related criterion.  It must recognize every adult’s right to live at risk and make individual choices.

Based on these principles, a framework of law, policy and service delivery for mental health services and adult protection must be established to address serious adverse effects that promotes and appropriately balances both autonomy and safety.  At the same time it must protect against discrimination on the basis of disability.  We propose that such a framework would involve roles for our proposed Legal Capacity and Support Office and Administrative Tribunal, as well as legal counsel for those whose cases are brought to the Administrative Tribunal, independent advocates, and monitors for those in a supported or facilitated decision-making status.

 

1.        Legal Capacity And Support Office:  Investigations, Assessment of Support Needs, and Arranging Supports 

The Legal Capacity and Support office would have the authority to investigate concerns, complaints, and allegations of serious adverse effects in situations where individuals are in a supported or facilitated decision-making status, or where there are reasonable grounds to indicate that a person is unable to act legally independently.  In conducting these investigations, the Office may find that a person is unable to maximize their legal capacity through their current decision-making status, and may seek direction from the Administrative Tribunal relating to the appropriateness of the person’s status.

The Legal Capacity and Support Office would also have a duty to intervene first to offer an assessment of support needs to the individual in question and to others involved; and second where such assessments are conducted, to offer and arrange needed supports as agreed to by the individuals involved. The assessment and provision would address two forms of supports:  community resources and decision-making supports.

1)        Community Resources – All too often, people with disabilities find themselves in unsafe situations, not because of incapacity, but because of the inadequacy of community supports.  For example, a person with a disability who lives in specialized housing where government funded personal support assistance is provided may be experiencing abuse by a personal support worker.  Her preferred solution may be to move to another housing complex to remove herself from the abusive situation, rather than taking direct action against the abuser.  However, this would not be possible if there is no other support option available to her.  Continuing to live in abuse may be the result, not of an incapably made decision, but rather because of a lack of community support alternatives in the form of personal support assistance.

Thus, maximizing a person’s autonomy while minimizing serious adverse effects, requires that a sufficient supply and range of community resources be made available, especially to populations who have been historically subject to abuse and neglect.  Community resources would assist individuals in coping with or removing themselves from their situation.  This may involve supports in the provision of basic needs, such as assisting them to find a safe place to stay, to find protection from potential abusers, and to obtain necessaries of life (such as food and clothing).  Interviews conducted and literature reviewed for this paper on mental health systems, suggest it is the failure of adequate community supports and services that usually results in involuntary commitment to psychiatric facilities for assessment and/or treatment, depending on the jurisdiction.[243]

2)        Decision-making Supports – Decision-making support must be available to enable a person to make his/her own decision about what to do in the face of serious adverse effects.  For example, the person may benefit from life planning assistance, independent advocacy or relationship building support.  The nature and types of decision-making supports is the same as those discussed more fully above.  For example, consider an adult with an intellectual disability who lives with her brother.  Her brother allows her only to be in the basement, which is rat-infested and has no access to hot water.  He gives her small amounts of food, but she is always hungry and weak.  She knows she is unhappy, and with the assistance of her support circle, understands the risks that she is taking by living with her brother.  Her support circle assists her to decide to move out to a safer place, and helps her take the necessary action to do so.

The following is an example of where both types of supports come into view.  Consider a couple’s young adult son who develops a psychosocial disability.  As he becomes more and more isolated, he displays behavior his parents do not understand, and begins to become more aggressive and even threatening to the parents.  The parents find themselves unable to cope.  Their son refuses to see a doctor, is increasingly paranoid and the parents worry for his and their safety.  Nonetheless, the son is clear about what he will do and not do.  Both the son and the parents are experiencing serious adverse effects.  While the son may refuse any support, the parents require intensive planning support to develop options, which may include arranging for a ‘safe home’ in the community that the son agrees to move to; or an advocate he trusts.  While the parents may wish to have him receive psychiatric treatment, his refusal to do so should be respected.  However, it should not mean the end of searching for alternative, effective support options.  In this example, the necessary types of supports include: decision-making supports (planning supports for the parents, and independent advocate for the son) and community resources in the form of a safe house or other option.

 The Legal Capacity and Support Office and the Community Based Resource Centre should be mandated to act collaboratively to intervene to offer and help arrange both types of support to those who are experiencing serious adverse effects.

At some point, however, the parents may perceive the son’s condition as deteriorating to the extent that he can no longer express his will and/or intentions in ways that would direct reasonable consequential action.  At that point, the parents may apply to the Tribunal for a determination about whether he is, in fact, in a facilitated status.  If the Tribunal makes such a determination, and further that the parents should be appointed as facilitators, the parents could seek to admit their son to a psychiatric facility for assessment and/or treatment.  Alternatively, the Tribunal could consider appointing other facilitators if it was determined the parents were not suitable to play this role given familial history, or because the adult son had indicated wishes for others to provide that facilitation.  In any event, if the son refuses admission, he would have the opportunity to appear before the Tribunal with an independent advocate and counsel to challenge the determination that he was in a facilitated status.

 

2.         Role of the Administrative Tribunal


The Administrative Tribunal, upon recommendations from the Legal Capacity and Support Office, would make determinations about an individual’s decision-making status and authorize, within its mandate, accommodations and/or state provision of needed supports.  Legal counsel and independent advocates would be made available to those whose cases are investigated by the Legal Capacity and Support Office and/or brought before the Tribunal.

 

3.         Role of a Monitor

The monitor’s role in situations of serious adverse effects is crucial since the monitor oversees the actions and decisions of supporters and facilitators.  Because of the gravity of the situation, it is essential that safeguards, such as monitors, exist to ensure supporters and facilitators meet their legal obligations.  The monitor would be legally required to make inquiries into whether or not, and the extent to which, representatives and facilitators are acting appropriately in the face of serious adverse effects.

This approach to serious adverse effects should apply equally to everyone in either a supported or facilitated decision-making status, and to those who, on reasonable grounds, have their capacity to act legally independently questioned.  The approach outlined here does not establish a set of obligations that apply only to those who meet some disability-related criterion.  It recognizes every adult’s right to live at risk and make individual choices.

 

D.       State Intervention, Decision-making Status and Serious Adverse Effects


In cases of suspected serious adverse effects, a framework for state intervention by the Legal Capacity and Support Office must follow a twofold inquiry:

1)        Determine whether:

a.  serious adverse effects are actually occurring, and if so which types (i.e. a, b, c and/or d as described above); and

b.  whether or not the person is able to act legally independently, with supports as needed, or whether they can act only through either a supported or facilitated decision-making status in relation to a particular decision or set of decisions;[244] and

2)        Determine what interventions (i.e. supports and safeguards) are required to address the situation.

The inquiry would be conducted by the Legal Capacity and Support Office where they receive a complaint or allegation that suggests serious adverse effects are occurring and where there are reasonable grounds to believe the person is not currently able to act legally independently in relation to the situation creating serious adverse effects. 

Responding to allegations of serious adverse effects, the Legal Capacity and Support Office would investigate first to determine if serious adverse effects are occurring, and which type(s).[245]  In the course of the inquiry the Office may find the situation is either a medical emergency or may involve criminal behavior.  In either of these cases, the Office would respond as follows:

1)        Medical emergency – If it is determined that the situation requires emergency medical attention, the Office would make the appropriate referrals to emergency services.  If the situation is found to be neither an emergency, nor a situation of serious adverse effects, the investigation is terminated and no inquiry into capacity for acting legally independently is made. 

2)        Possible criminal behavior –  Where the Legal Capacity and Support Office, in the course of investigating situations of serious adverse effects, obtains evidence of possible criminal conduct related to the situation, it may consider referring the matter to the police for criminal investigation.  Where the Office is of the opinion that the possible criminal conduct (e.g. making threats to others, violent behavior, financial mismanagement) is a result of lack of needed supports, it may take advantage of other options before referring the matter on to the police.[246]

Where a finding of serious adverse effects is made, findings and recommendations would be presented to the Administrative Tribunal where there is a dispute about a person’s decision-making status.  In addition, matters could be referred to the Administrative Tribunal where the Legal Capacity and Support Office believes that action is required but does not have the necessary resources or jurisdiction. 

In cases of alleged or actually occurring serious adverse effects, the duties of, and procedures to be followed by, the Legal Capacity and Support Office and the Tribunal would vary depending on the individual’s decision-making status; except in cases of medical emergency or possible criminal behavior.  In either of these cases, the Office would respond as indicated above, regardless of the person’s decision-making status.  Below, we consider implications for each of the three decision-making statuses.

 

1.         Legally Independent Status


Based on our proposed framework, the following protocol would apply:

1)        If the situation is not a medical emergency, and it is determined that it should not be referred for criminal investigation, but it is found to be a situation of serious adverse effects, the Legal Capacity and Support Office determines if the person is able to act legally independently, with or without additional decision-making supports and community based supports for basic needs.  One of the factors to take into account in making this determination is if the person poses a danger to him/herself or others.  Where this is the case, the Office would be under strict obligation to determine if the individual understands information and appreciates the nature and consequences of his/her behavior.  If not, the Office may recommend the individual requires either a supported or a facilitated decision-making status with respect to some or all decisions.

2)        If it is determined that the person is able to act legally independently with or without any additional decision-making supports, the Legal Capacity and Support Office would have a few options:

a.   Offer to the individual and any others directly involved in the situation (e.g. family, caregivers) an opportunity to conduct an assessment of possible decision-making supports and community based supports for basic needs.

b.   If the offer is accepted, the assessment is undertaken and the Office may recommend that the Community-Based Resource Centre be engaged to arrange needed supports and/or may make recommendations to the Tribunal about accommodations and/or supports that may require additional orders or funding.  If the individual refuses the offer, but others directly involved accept an assessment of their own support needs then the assessment can proceed.  This is to address situations, in particular, where serious adverse effects may be of type (d) where others are at risk of harm by the individual’s actions or behavior.  Depending on the outcome of the assessment, the Community-Based Resource Centre can be engaged to assist in arranging needed supports.

3)        If such an assessment is refused by both the individual and others involved, the Office may, based on its own assessment of risk, initiate periodic contact with those involved to offer support and assistance. If it is determined that the person is not able to act legally independently, then the Office makes recommendations to the Administrative Tribunal about the appropriate decision-making status and associated arrangements.  See below for protocols to be followed for those in supported or facilitated decision-making status.

4)        A person acting through a legally independent status cannot be involuntarily committed to a psychiatric facility for psychiatric assessment or treatment.

 

2.         Supported Decision-Making Status


With supported decision-making arrangements, the person is still able to make decisions themselves if they meet the newly formulated ‘understand and appreciate test’ with the support of his/her representatives.  Such understanding and appreciating may be undertaken almost entirely by support representatives in situations where people with significant disabilities have very limited communication.  Because the stakes are so high in situations of serious adverse effects, it is essential to be sure that the supporters are meeting their fiduciary duties and all other legal obligations imposed on them.  Further, given that supported decision making created in a de facto manner does not have the usual safeguards associated with other forms of appointment of supporters (e.g. monitors), de facto supporters cannot act in situations of serious adverse effects.  However, in situations of serious adverse effects they can become supporters through appointment directly by the individual, or through application to the Tribunal.  It is essential to be sure that the person’s decisions are made with the benefit of optimal support.

If there is a question as to the legitimacy of the actions/inactions of the representatives, resort must be made to the framework’s safeguards set out above, including involving the monitor and raising the issue before the Administrative Tribunal.  If there is no concern about the representatives, the decision made by the person must not be questioned.  However, as with people who are in the legally independent status, decision-making and other supports must be made available to the person to enhance his/her ability to make decisions.

Once the Legal Capacity and Support Office acts on an allegation of serious adverse effects and determines that such effects exist, that it is not a medical emergency, that it will not refer for criminal investigation, and that the person is in a supported decision-making status, the following protocol applies:

1)        In relation to a person’s decision-making status, the Office may make one of several findings:

a.    the individual already has formal or informal supported decision-making arrangements in place; or

b.    the individual is not able to act legally independently without representational supports or a co-decision-maker, neither of which are yet in place; or

c.    supported decision-making arrangements are not in place, and cannot be put into place because of the lack of availability of individuals who understand or know the person well enough to represent them in a supported decision-making status.

In situations of either (b) or (c), the Office would apply to the Tribunal for an order relating to establishing representational supports.

2)        Once the Office establishes the nature of the supported decision-making arrangement, it could:

a.  Determine if the support representatives are meeting their fiduciary responsibility.  If not, the Office can make a determination of why not, and either require supports be provided to the representatives to assist them in meeting their responsibilities; or recommend to the Tribunal that support representatives be replaced.  The Office may request the Tribunal to appoint a representative.  The priority would be on individuals whom the person wishes to appoint for this purpose, and/or who indicate they are in a personal relationship of trust and commitment to the person.  If no other representatives are available, the Office can seek to be appointed by the Tribunal to act as support representative of last resort.

b.    Offer to the individual and any support representatives an opportunity to assess decision-making supports and community based supports for basic needs.

                                          i.    If the offer is accepted, the assessment is undertaken and the Office may recommend that the Community-Based Resource Centre be engaged to arrange needed supports and/or may make recommendations to the Tribunal about accommodations and/or supports that may require additional orders or funding.

                                        ii.    If the individual and/or some support representatives refuse the offer, but others directly involved accept, the assessment can proceed with those who agree to it.  That is, where there is disagreement among the individual and/or some of the support representatives, and a situation of serious adverse effects exists, the assessment is justified. 

                                       iii.    If the assessment is refused by both the individual and support representatives, the Office may, based on its own assessment of risk, initiate periodic contact with those involved to offer support and assistance.

c.    Once a determination is made of serious adverse effects, and of the need for supported decision-making, the Office may involve any appointed monitor in the investigation, arrange for appointment of a monitor, and/or question whether the monitor is fulfilling his/her duties.

d.    A person acting through a supported decision-making status cannot be involuntarily committed to a psychiatric facility for psychiatric assessment or treatment.

 

3.         Facilitated Decision-Making Status


Because, by definition, a facilitator is not able to fully understand the person’s will and/or intentions as the basis for reasonable consequential action that respects the person’s dignity of risk, he/she should not be able to consent on a person’s behalf to have them placed, or remain, in a situation of serious adverse effects.  Their fiduciary responsibility would require them not to facilitate any decisions that place the person at substantial risk to themselves or others. However, some dignity of risk should be available to the person as the facilitator begins to discern their will and/or intention, or has prior knowledge of the person’s wishes with respect to the risks they wish to assume.

Once the Legal Capacity and Support Office acts on an allegation of serious adverse effects, and determines that such effects exist, that it is not a medical emergency, and that the person is in a facilitated decision-making status, the following protocol applies:

1)        The Office determines if the facilitator is meeting his/her fiduciary responsibility.  If not, the Office can make a determination of why not, and either require supports be provided to the facilitator to assist them in meeting their responsibilities, or recommend to the Tribunal that the facilitator be replaced.  If no other facilitator is available, the Office may seek to be appointed by the Administrative Tribunal as facilitator of last resort.

2)        The Office may undertake an assessment related to needs for decision-making supports and other community resources.  Unlike the other two statuses, the facilitator cannot refuse the assessment of needs, given the vulnerability of the individual in this status.  The Office may recommend that the Community-Based Resource Centre be engaged to arrange needed supports and/or may make recommendations to the Tribunal about accommodations and/or supports that may require additional orders or funding. 

3)        The Office may, based on its own assessment of risk, initiate periodic contact with those involved to offer support and assistance.

4)        The Office may involve any appointed monitor in the investigation, and/or question whether the monitor is fulfilling his/her duties.

5)        The facilitator may determine that the individual being supported requires psychiatric or other medical assessment or treatment to deal with a situation of serious adverse effects, and may wish to have the person admitted to a medical or psychiatric facility for this purpose.  If, at the time of admission, or at a period prior to that, the individual resists the admission, they have a right to a Tribunal hearing to make a determination as to their status and/or the legitimacy of the facilitator’s decision.  In making this determination, the Tribunal may request an assessment from the Legal Capacity and Support Office as to the person’s decision-making status and the availability and appropriateness of support alternatives other than admission.  As well, it may request recommendations from the psychiatrists or other medical professionals involved.

6)        In all cases, the decision regarding medical or psychiatric intervention is made by the facilitator and not by medical professionals, although they may make a medical recommendation as requested by the Tribunal.

 

E.        Protocol for a Facilitator to Seek Admission of a Person to a Facility for Psychiatric Assessment and/or Treatment

There are likely to be situations where facilitators wish to admit to a psychiatric facility a person for whom they have been legally authorized to act as a facilitator, for the purposes of psychiatric assessment and/or treatment.  Facilitators would be authorized to seek admission for this purpose, with certain safeguards, on the basis that the person is in a situation of serious adverse effects, or that others are as a result of the individual’s actions.  As noted above, only those in a facilitated status can be admitted for this purpose without their consent.

If the individual does not resist admission, the facilitator can go to an emergency department and seek to have the person admitted.

If the person does resist admission, the following protocol would apply for the facilitator, Legal Capacity and Support Office, and the Administrative Tribunal.

1)    If the facilitator and the person are already at the admitting centre to a facility, and the person is refusing admission, the facilitator and/or the facility would contact the Administrative Tribunal which would provide adjudicators on a 24-basis to such facilities, on-site, via telehealth conferencing services or on some other emergency response basis.  As in the protocol outlined above, the Tribunal adjudicator could seek input from the Legal Capacity and Support Office about the appropriateness of the status, the presence of serious adverse effects, and the availability of alternatives.  The individual would also have access to an independent advocate and legal counsel for this purpose.

2)    If the person and facilitator are not physically at the admissions centre to a facility, and the person is refusing to go to a facility for this purpose, the default process should be based on the principle of a duty to accommodate.  The process should go to where the person is.  Adjudicators with the Tribunal and representatives of the Legal Capacity and Support Office, as well as independent advocates and legal counsel, may go to a person’s home or wherever else he or she may be to undertake the hearing and assessment.  Realistically, and given the rural and remote nature of many communities, as well as inevitably scarce resources, this may require hearings by telephone.

3)    If the Tribunal – after hearing evidence and arguments of the person and the facilitator, and the assessment of the Legal Capacity and Support Office and health professionals – determines that the facilitator is acting according to their legislated duties, that the person is in fact in a facilitated status, and that there is a situation of serious adverse effects, then they may order necessary steps be taken to have the person admitted.  This may include the assistance of police or other emergency response services.

In summary, a commitment to maximizing autonomy requires that constraining choice and personal dignity only happen where serious adverse effects occur and the person is in a facilitated decision-making status.  For those in a supported decision-making status, our framework allows for people to make their own decisions in relation to serious adverse effects, but suggests a number of checks and balances, including appointment of monitors, legislated duties of support representatives and recourse to an Administrative Tribunal.  It also imagines a proactive role by both the Legal Capacity and Support Office and the Tribunal in ensuring needs assessment and a range of decision-making supports and community resources are provided as agreed to by individuals and others involved.

The procedures outlined above imply substantial investment of resources, and re-alignment of health professions’ responsibilities, in order to ensure an independent and autonomous, but integrated role, for the Administrative Tribunal and the Legal Capacity and Support Office within the health care system, and to ensure legal counsel and independent advocacy as needed.  That substantial investment would be required is no reason to suggest the proposals are not credible.  The issue is what it will take to reasonably meet the requirements to maximize the equal right to legal capacity and autonomy without discrimination on the basis of disability.  We believe the institutional framework, machinery and safeguards outlined in these sections provide a reasonable infrastructure to protect and enhance autonomy.

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