Supported and co-Decision-making: Law Commission of Ontario Considers Alternatives to Substitute Decision Making

July 7, 2014 Hull & Hull LLP Capacity, Guardianship, Power of Attorney 0 Comments

I recently blogged about the Law Commission of Ontario’s discussion paper here and Suzana Popovic-Montag followed up on my post here.  Today I want to discuss the third part of the paper, which deals with Ontario’s substitute decision-making systems.

Presently, Ontario’s substitute decision-making system is defined by five features.  First, it is based upon a cognitive capacity threshold.  Although the tests are specific to the decision in question, and although it is recognized that capacity can fluctuate, the tests have an “all-or-nothing quality” in the sense that one is either capable to make a decision or one is not.  Second, individuals have the opportunity to choose their substitute decision-maker in most instances, as executing powers of attorney is relatively simple and inexpensive.  Third, Ontario prefers relationships based on trust as the foundation of substitute decision-making.  Where a substitute decision-maker does not already exist, priority is given to family members.  Fourth, substitute decision-makers are encouraged to promote the participation of the persons over whom they exercise authority.  Fifth, persons who lack capacity have certain procedural rights.

Ontario’s substitute decision-making system has been criticized as

inherently paternalistic and disempowering for persons with disabilities, based on ableist attitudes, and violating the equality and non-discriminatory guarantees in the Charter of Rights and Freedoms and other human rights instruments.

This is a strong argument to make and not one that I believe the broader legal community supports.  Ontario’s substitute decision-making system, while flawed, is reasonably nuanced and attentive to the particular circumstances of the incapable. It affords them with procedural rights and legal protections. I would not go so far as to say it violates the equality provision of the Charter of Rights and Freedoms.

Nevertheless, it is certainly true that persons who have had a substitute decision-maker appointed over them experience a loss of autonomy which can expose them to significant stigma.  While substitute decision-makers are encouraged to involve the person over whom they exercise authority in decisions made on their behalf, in practice the decision-maker may simply ignore the legally incapable person’s input altogether.

Another criticism of Ontario’s substitute decision-making system is that is therapeutically counter-productive.  Substitute decision-making is intended to enhance the well-being of the incapable person by transferring decision-making into the hands of someone who is better able to determine what is best for the incapable person.  Critics point out that this loss of autonomy can “have negative consequences for well-being, potentially resulting in depressive symptoms, feelings of helplessness, and the perpetuation of stigma about the individual.”

The Law Commission considers two alternatives to substitute decision-making: supported decision-making and co-decision-making.

In contrast to substitute decision-making, supported decision-making is based on the idea that “disability results from interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.” Thus, rather than trying to identify mental attributes that would render someone incapable of making decisions, a system of supported decision-making would work to provide persons with disabilities with the means to make their own decisions.

My concern with this approach is that it may render persons with disabilities more susceptible to undue influence.  The benefit of a system that formally recognizes incapacity and appointment of substitute decision-makers is that it creates clear relationships under law between the substitute decision-maker and the incapable, with duties and responsibilities that are legally enforceable.  Any system of supported decision-making would have to address concerns about undue influence.

In a system of co-decision-making, a person with diminished capacity would be allowed to make their own decisions, provided that their co-decision-maker approved of them.  The co-decision-maker would not be allowed to refuse reasonable and responsible decisions made by the person with diminished capacity.  In effect, the co-decision maker’s advice and assistance would restore full capacity as closely as possible.  This seems to me a better approach than supported decision-making, because it creates a more formal relationship, the integrity of which the legal system is well-equipped to protect.

In practice, many substitute decision-makers already carry on a form of supported or co-decision-making with the person over whom they exercise legal authority.  Furthermore, it is apparent from criticisms of substitute decision-making that one of the major complaints of persons who lose legal capacity is the stigma associated with the loss.  Alternative decision-making systems may work to reduce that stigma, but a reduction in stigma also requires broad attitudinal adjustments that the legal system may not be best positioned to address.

Thank you for reading,

Ian Hull

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