The Law Commission of Ontario (LCO) is hosting 32 focus groups to inform its project on reforming the Health Care Consent Act and Substitute Decisions Act. The Canadian Mental Health Association (CMHA), Ontario participated in their most recent focus group to discuss legal capacity, decision-making and guardianship. The LCO is concentrating on the following aspects of this issue:
- The standard for capacity including tests for capacity
- Decision-making models including alternatives to substitute decision-making
- The process for appointing a substitute-decision maker
- The roles and responsibilities of guardians and other substitute decision-makers
- Monitoring, accountability and prevention of abuse of individuals who are being supported by a substitute decision-maker
- Dispute resolution
This particular focus group brought together community and advocacy organizations including Autism Ontario, the Canadian Hearing Society, the ARCH Disability Law Centre and others.
Participants discussed the issue of capacity assessments and how they need to be done regularly for individuals with progressive (Alzheimer’s) or episodic conditions (mental health issues). Other issues relating to capacity assessment were also discussed, such as the assumption that these individuals are not capable to make certain decisions when it comes to managing property, personal care, treatment, admission to a long-term care home, and creation of powers of attorneys. There is also a lack of awareness around the decision making process and the fact that the in the absence of any relatives, the public guardian and trustee needs to be involved.
The focus group also explored the need for public education on the issues and process around capacity, decision-making and guardianship. The current Health Care Consent Act and Substitute Decisions Act are often not applied appropriately in legal, healthcare and other settings. Education is needed for the individuals who assign or obtain a substitute decision-maker as well as for the substitute-decision makers themselves and the legal, healthcare or other professionals involved.
As part of this project, the LCO has also released a discussion paper, a summary of issues paper and two questionnaires. The first questionnaire is for persons directly affected by this area of the law and second one is for their families, friends, supporters and substitute decision-makers. Please share these questionnaires with your colleagues, friends and family who may be involved or impacted by this area of the law.
Learn more about LCO’s project on legal capacity, decision-making and guardianship.