Ontario Mental Health Law Update

Law Commission of Ontario Reforming Community-based Capacity and Decision-making

The Ontario Law Commission’s ongoing initiative to address both capacity and decision making calls for responses to the interim report, with the use of this document: Legal Capacity, Decision-making and Guardianship Interim Report: Summary of Issues and Draft Recommendations

The summary report reflects many of the challenges experienced by some ACTT clients and team members, around capacity and consent in various areas of life.

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.

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.

The review’s framework of principles aligns well with any discipline’s ethics as we further develop our understanding of recovery.
  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 approach by the Ontario Law Commission to advancing changes is focused on systematic change with “continuous advancement.”

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.

See the document here: https://www.lco-cdo.org/en/capacity-guardianship-interim-report-announcement