Most of us, at some point, will be touched by provincial laws governing the care of people who can’t fend for themselves. It may be as a senior who is no longer capable of making sound choices; as that person’s “substitute decision-maker”; or as a family member pondering the future of a frail loved-one.
In every case, we face a legal system for handling capacity and consent that’s “extremely complicated, with multiple layers, pathways, tests and institutions,” according to a revealing new report from the Law Commission of Ontario.
“There is no central repository for knowledge about the system, and relatively little in the way of navigational supports,” the commission found. “As a result, not only individuals and families but also service providers often find the system extremely confusing.”
No wonder “misunderstandings of the law are widespread.” The consequences of such disarray can be grave, affecting some of society’s most vulnerable people. But change is possible.
Several sound proposals for mending this broken system are set out in a 351-page interim report from the law commission, made public on Monday. Its recommendations to make the rules fairer and easier to understand include:
- Creation of a central, coordinated “information clearinghouse” using plain language to guide substitute decision-makers and people directly affected by the law.
- Giving adjudicators power to order education in this area for guardians, people acting under power of attorney, and others found to lack adequate expertise.
- Having education institutions “re-examine their curriculums” and improve the quality of information delivered on these issues.
Other worthwhile suggestions, among 54 draft recommendations, involve streamlining the process of settling disputes. Disagreements over decision-making and guardianship are currently adjudicated through the courts, making the system exceedingly complex and difficult to use.
A better way lies in expanding the power of Ontario’s existing Consent and Capacity Board. Matters handled by this tribunal currently include reviewing a finding that someone lacks capacity to make their own decisions.
It would make sense to expand its role, allowing the board to serve as an alternative to court on other issues, providing “a more accessible and less intimidating form of justice for often vulnerable individuals,” the commission wrote. “This is, over the longer term, the most forward-looking, cost-effective, realistic and practical option for reducing barriers to accessing the law.”
The commission is to receive feedback on its recommendations until March 4, with a final report expected before the end of the year. Once this is in hand, Queen’s Park should act quickly, especially given that the number of Canadians stricken by some form of dementia is expected to double to 1.4 million over the next 20 years.
These people, and everyone looking out for them, deserve a system that’s fair, effective and better-tailored to their needs.
Monday January 11, 2016