I. REFORMING LEGAL CAPACITY, DECISION-MAKING AND GUARDIANSHP LAW: AN INTRODUCTION AND OVERVIEW

FOR MORE INFORMATION ON THIS TOPIC, SEE INTERIM REPORT, Chapters I, II, and III

For the full text of draft recommendations, see the accompanying document

Main Point of the Chapters

Chapter I of the Interim Report provides an overview of the project process, scope and themes, which focus on reducing unnecessary and inappropriate intervention, improving access to the law and enhancing the clarity and coordination of the law. Chapter II describes in brief Ontario’s legal capacity and decision-making laws, and identifies their core strengths and shortcomings. Chapter III analyzes the application of the LCO Frameworks to these laws, including the implications of the principles, and analysis of the contexts in which the law operates and the differential impact on particular groups.

Background

The Law Commission of Ontario (LCO) has undertaken a project to examine and recommend reforms to Ontario’s legal capacity, decision-making and guardianship laws, and in particular the Substitute Decisions Act and the Health Care Consent Act. 

Ontario’s current statutory regime for legal capacity, decision-making and guardianship took shape as a result of a monumental reform effort spanning the late 1980s and early 1990s. The result was legislation which was progressive and innovative in its approach to the issues, largely philosophically consistent and reasonably well coordinated. It is also extremely complicated, with multiple layers, pathways, tests and institutions. Stakeholders have identified a number of ways in which implementation of these laws has fallen significantly short of the legislative intent. As well, since the passage of this legislation, there have been significant demographic, social and attitudinal changes, as well as important developments on the international stage. 

These laws affect a substantial portion of Ontario’s population, including persons with significant temporary or chronic illnesses, with aging related disabilities such as dementia, with mental health disabilities, acquired brain injuries or developmental disabilities. These laws of course also have a major impact on families and caregivers, as well as on a wide array of professionals and service providers. Most Ontarians will, at some point in their personal or professional lives, encounter this area of the law. 

In carrying out this project, the LCO is applying the principles and considerations identified in its Framework for the Law as It Affects Older Adults and Framework for the Law as it Affects Persons with Disabilities. These are available on the LCO’s website at http://www.lco-cdo.org/en/older-adults-final-report-framework and http://www.lco-cdo.org/en/disabilities-final-report.  

The LCO conducted preliminary consultations and extensive research, both internal and commissioned, throughout 2013, and released a comprehensive Discussion Paper in mid-2014. This was the subject of extensive public consultation. The LCO has now released a thorough Interim Report, which analyzes issues in this area of the law, reviews feedback and information received through our public consultation and research, and proposes recommendations for reform to law, policy and practice in this area. The LCO will consider feedback on the content of the Interim Report and the draft recommendations in developing a Final Report for release. 

This Summary of Issues and Draft Recommendations provides a brief overview of the key issues raised in the project, and of the LCO’s draft recommendations. Those seeking more information about the issues and options raised in this Summary of Issues and Draft Recommendations are encouraged to refer to the full Interim Report http://www.lco-cdo.org/en/capacity-guardianship-interim-report or to its Executive Summary, which can be found at http://www.lco-cdo.org/en/capacity-guardianship-interim-report-executive-summary. This document provides only summaries of the draft recommendations. Readers are encouraged to review the full text of those draft recommendations in which they have an interest, which can be found at http://www.lco-cdo.org/en/capacity-guardianship-interim-report-appendixA.  

Issues

The LCO Frameworks are centred on six principles, which are aimed at an overarching goal of substantive equality for persons with disabilities and older adults. These principles are:

1.     Respecting dignity and worth;

2.     Promoting inclusion and participation;

3.     Fostering autonomy and independence;

4.     Respecting the importance of security/facilitating the right to live in safety;

5.     Responding to diversity; and

6.     Understanding membership in the broader community/recognizing that we all live in society. 

The principles are to be interpreted in the context of the lived experience of older adults and persons with disabilities. In applying the principles, it should be understood that they may both support each other and at times be in tension. 

These principles assist in identifying issues and guiding law reform. They may also assist in interpreting and applying laws, policies and practices in this area. 

The Frameworks incorporate the concept of progressive realization as a means of advancing towards fulfilment of the principles. The concept of progressive realization involves an understanding that achievement of the principles is an ongoing process, as circumstances, understandings and resources develop. Reforms must respect and advance the principles, principles must be realized to the greatest extent possible at the current time and there must be a focus on continuous advancement. 

Allied to this focus on progressive realization is an emphasis on actively monitoring the outcome of reforms. This assists in determining whether laws continue to be in harmony with the principles and whether their aims are being achieved. This is also in keeping with the current emphasis in government on evidence-based policy. 

Here is a summary of the LCO’s draft recommendations in this area:

1.     The Ontario government include in reformed laws provisions that are informed by the LCO Framework principles and which set out the purposes of the legislation and principles to guide interpretation of the legislation. 

2.     The Ontario government accompany reforms with a strategy for reviewing their effect within a designated period of time.