This paper presents a number of proposals for a more robust framework than currently exists in Ontario and other jurisdictions for protecting and advancing the right to legal capacity and autonomy without discrimination on the basis of disability. The main proposals are summarized in this section.
A. Key Concepts and Principles
1. Legal Capacity
Legal capacity reflects an individual’s right to make decisions and have those decisions respected by others. It is not to be equated with mental capacity. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) breaks the link between the two; mental capacity can no longer be considered a criterion for recognizing the right to legal capacity as it is discriminatory on the basis of disability. We describe the principle of equal recognition of legal capacity this way:
People enjoy and exercise their right to legal capacity differently depending on a person’s unique characteristics. A person’s autonomy and legal capacity is maximized equally to the extent that they access the supports and accommodations they need to exercise their legal capacity; and to the extent that supports and accommodations adapt to each person’s evolving decision-making abilities and capabilities.
The main concepts used in stating this principle are described below.
2. Decision-making Capability
‘Decision-making capability’ is proposed as a core concept for a new paradigm for maximizing autonomy and the right to legal capacity. The concept recognizes that people have a range of decision-making abilities. Combined with supports and accommodations by others, a person’s capability to make personal life/care, health care and financial decisions about their lives can be enhanced sufficient for making those decisions.
3. Decision-making Ability
People have a range of decision-making abilities including, for some, the ability to understand information and appreciate the nature and consequences of a decision, and communicate that decision to others in ways they will understand. This ability has been defined in much legislation and case law as the deciding criterion for determining whether or not a person’s right to legal capacity will be recognized and in what respects. Such provisions violate the right to equal recognition of legal capacity without discrimination on the basis of disability under the CRPD.
We define the minimum threshold of decision-making ability as follows:
to act in a way that at least one other person who has personal knowledge of an individual can reasonably ascribe to that individual’s actions: personal intention or will; memory; coherence of the person’s identity through time; and communicative abilities to that effect.
We suggest that competent decision-making processes can be designed guided by such abilities.
4. Decision-making Supports
People require a range of decision-making supports to make decisions in their lives, and to turn their decision-making abilities into decision-making capabilities. Governments should ensure access to at least six main types of decision-making supports under Article 12(3) of the CRPD, including:
· Life planning
· Independent advocacy
· Communicational and Interpretive
5. Decision-making Accommodations
Legal capacity laws have usually been designed on the basis that only those individuals who can meet the traditional ‘understand and appreciate’ test can legally engage in decision-making transactions. The duty to accommodate in Canadian law and in Article 5 of the CRPD provides a clear foundation for applying this duty to parties in decision-making processes.
6. Decision-making Status
Three distinct decision-making statuses are proposed through which people are recognized to exercise their legal capacity. These statuses are based on distinctions already emerging in law in Canada, and their definition is also guided by the CRPD’s mandate to ensure supports that enable the exercise and enjoyment of legal capacity without discrimination on the basis of disability.
a) Legally independent decision-making status –The minimum threshold for a person to act in this status is defined by the re-formulated ‘understand and appreciate’ test. That is, in a legally independent status there is reasonable evidence that the person:
· has the ability, by him or herself or with assistance, to understand information that is relevant to making a decision; and
· has the ability, by him or herself or with assistance, to appreciate the reasonably foreseeable consequences of a decision.
b) Supported decision-making status – People in this status access supports for the purpose of expressing and representing themselves to third parties, and/or processing information. People in this status do not meet the minimum threshold for acting legally independently. The minimum threshold for acting through the supported decision-making status is that there is reasonable evidence that:
· An individual can act in a way that at least one other person who has personal knowledge of the individual:
o can reasonably ascribe to the individual’s actions, personal will and/or intentions consistent with the person’s identity; and
o can take reasonable consequential actions to give effect to the will and/or intentions of the individual, which respect the individual’s dignity of risk.
c) Facilitated decision-making status – This status is for those individuals with significant disabilities who do not meet either of the minimum threshold tests for legal independence or supported decision making with respect to a particular decision or set of decisions.
A person could be in a facilitated status in respect to some or all areas of their lives. The fact that a person is in a facilitated status is no judgment about their cognitive abilities. It simply reflects the fact that there are not, as of yet, any relationships in place for this person where others can reasonably discern their will and/or intention and describe it to others.
Facilitators could be appointed by an administrative tribunal or through a planning document in which a decision-maker is appointed at a time when the individual was acting legally independently or in a supported decision-making status in respect of that appointment.
While legal capacity cannot be removed, the decision-making status through which one exercises it can be changed.
7. Presumption of Legal Independence
To ensure that no individual is denied the opportunity to be considered able to exercise their legal capacity through a legally independent status, a newly formulated principle of ‘presumption of legal independence’ is proposed based on the minimum threshold defined above:
All persons are presumed capable of:
· having the ability, by him or herself or with assistance, to understand information that is relevant to making a decision; and
· having the ability, by him or herself or with assistance, to appreciate the reasonably foreseeable consequences of a decision.
8. Functional Assessment of Decision-making Capability and Status
In making status determinations a ‘functional assessment’ of decision-making capability would be needed to deal with situations where there is reasonable question as to whether a person meets the minimum thresholds of either legal independence and/or supported decision making. The assessment should address the following questions:
1) Does the person appear to have the decision-making abilities to understand and appreciate the nature and consequences of a particular decision?
2) If not, would additional supports and/or accommodations enable the person to satisfy (1) above? Have the supports been put in place to assist this person to understand and appreciate the nature and consequences of his or her intention and to engage and communicate in this decision-making process?
3) If not, can at least one other person who has personal knowledge of the individual reasonably ascribe to his or her actions: personal intention or will; memory; coherence of the person’s identity through time; and communicative abilities to that effect?
4) Are other parties to this decision reasonably accommodating the person?
5) Has the State provided sufficient supports to maximize the person’s decision-making capability?