Equality and Justice
For People With Disabilities

The Law Commission of Ontario Submits 58 Recommendations in a Final Report on Legal Capacity, Decision-making and Guardianship


Published on July 13, 2017

Matthew Carey, JD Candidate, University of Ottawa

 


On March 8, 2017, the Law Commission of Ontario (LCO) released its final report on Legal Capacity, Decision Making and Guardianship. The LCO claims that this project, which began over four years ago in 2012, has been their largest consultation initiative and the most comprehensive analysis of Ontario’s framework governing capacity, decision-making and guardianship in almost three decades. The LCO reached out to nearly 800 different stakeholders, including, professionals, organizations, and individuals; this number is indicative to the amount of time and effort that went into compiling information and writing the report.


The final report acknowledged the strengths of Ontario’s current legal capacity, decision making and guardianship regime, however concluded there are many areas of concern. The final report concluded with 58 recommendations to reform laws, policies and practices. The project aimed to meet the following objectives:


develop and pilot new approaches to decision-making;
improve the quality and consistency of capacity assessments;
enhance the clarity and accountability of powers of attorney;
improve rights enforcement and dispute resolution;
improve external appointment processes; develop new roles for professionals and community agencies;
improve public education and information; and
improve data collection, reporting and evaluation.

The report attempts to bridge a gap between the law and the lived experience of the legislation by amending three statutes that govern legal capacity, decision making and guardianship:

the Health Care Consent Act;
the Mental Health Act; and
the Substitute Decisions Act.

Amendments to these statutes aim to reduce abuse of vulnerable individuals through better education, transparency and monitoring tactics. Prioritizing the 58 recommendations, the LCO has identified three “key priority” recommendations. First, create an expert, independent and specialized tribunal to provide flexible, accessible and timely adjudication and support for those wishing to enforce rights and resolve disputes under the Substitute Decisions Act. Second, strengthen education and information initiatives for individuals involved with legal capacity and decision-making. Finally, the LCO recommends improving the quality of assessments of capacity and promoting access to basic procedural rights for those found incapable under the Health Care Consent Act.


In respect of implementing the 58 recommendations, the LCO outlined three different timeframes: (1) short-term recommendations, (2) medium-term recommendations and (3) long-term recommendations. A list of the recommendations categorized by time frames can be found under Appendix B of the report.  The time frames for each recommendation was determined by considering the complexity, the likely costs, and the difficulty of implementing the recommendation.


The final report can be accessed on the Law Commission of Ontario’s website.