Representation of Persons Under Disability
The Legislative Framework
The Substitute Decisions Act, 1992, S.O. 1992, c.30
The SDA governs substitute decision making and capacity matters in Ontario, in addition to other interrelated statutes, The Health Care Consent Act, 1996, S.O. 1996, c.2, Sched. A (the “HCCA”); and the Mental Health Act, R.S.O. 1990, c.M.7 (the “MHA”). These legislations affects the liberty and autonomy of certain individuals.
The SDA is a tool that may be used to help protect the interests of vulnerable adults.
Specifically, the SDA governs the appointment and obligations of attorneys and guardians both for property and for personal care; who act as substitute decision makers in the event of incapacity. Certain Court proceedings are authorized under the SDA and it contains additional protections for adults who are the subject matter of a guardianship application or capacity assessment.
The SDA defines capable as “mentally capable” and capacity as having a corresponding meaning. The SDA defines incapable as “mentally incapable” and incapacity as having a corresponding meaning.
The SDA pursuant to Section 2 provides for the presumption that a person eighteen years of age or more, is capable of entering into a contract.1 There is also a presumption that a person sixteen years of age or more, is presumed to be capable of giving or refusing consent in connection with his/her own personal care.2 There is a presumption that a person is deemed capable to retain and instruct Counsel in circumstances where capacity is in issue in proceedings under the SDA, and the PGT is ordered by the Court to arrange legal representation for the individual pursuant to Section 3.3
The SDA, Section 3: Representation of the Incapable Person
Hiltz and Szigeti in their publication with annotated commentary to the SDA,4 in relation to the presumption of capacity and retaining Counsel and particularly on the appointment of Section 3 SDA Counsel contend:
“[…] in relation to the first two presumptions, the Act entitles a person to rely upon these presumptions unless there are reasonable grounds to believe the person is not capable of entering into the contract or giving or refusing consent as the case may be.5 What constitutes reasonable grounds will of course depend on the particular facts of any case. A useful guide in determining when reasonable grounds may exist in the context of a treatment decision was contained in a regulation to the former Consent to Treatment Act, 1992, (proclaimed in 1995) of Ontario as follows:
“A health practitioner may have reason to believe that a person may be incapable with respect to a proposed treatment based on the following observations:
The person shows evidence of confused or delusional thinking;
The person appears to be unable to make a settled choice about treatment;
The person is experiencing severe pain or acute fear or anxiety;
The person appears to be severely depressed;
The person seems to be impaired by alcohol or drugs;
Any other observations that give rise to a concern about the person’s capacity, including observations about the person’s behaviour or communication.”
The third presumption regarding capacity to retain and instruct Counsel can be extremely problematic. In the case of Banton and Banton,6 Mr. Justice Cullity stated:
“The position of lawyers retained to represent a client whose capacity is in issue in proceedings under the Substitute Decisions Act is potentially one of considerable difficulty. Even in cases where the client is deemed to have capacity to retain and instruct Counsel pursuant to Section 3(1) of the Act, I do not believe that Counsel is in the position of a litigation guardian with authority to make decisions in the client's interests. Counsel must take instructions from the client and must not, in my view, act if satisfied that capacity to give instructions is lacking. A very high degree of professionalism may be required in borderline cases where it is possible that the client's wishes may be in conflict with his or her best interests and Counsel's duty to the Court.”
The difficulty of Counsel acting for clients in this area of law is increased by the obvious fact, that in the majority of cases and by most standards: (a) capacity of the client to give instructions is significantly diminished or lacking; and (b) given that it is not appropriate for Counsel to make decisions in the client’s interest as would a litigation guardian, is it also not appropriate for Counsel to determine what he or she believes to be in the best interest of the client? What then is the role of Counsel?
At the minimum, Counsel who act pursuant to a Section 3 appointment must: (1) identify the requirements of the law in relation to the particular issue;7 (2) ensure that the law has been complied with; and (3) to the extent possible, present evidence to the Court that reflects the wishes of the client and the circumstances in which those wishes were expressed. Appointed Counsel should not make decisions or express their personal view to the Court as to what he or she feels to be in the best interest of the client.”
The SDA requires that an individual’s capacity which is at issue in a proceeding is required to be served with notice of the proceedings. The individual, regardless of capacity, has the right to take part in the proceedings and have access to a lawyer, even if such appointment is pursuant to Section 3.
The importance of protecting individuals from a loss of freedom, and therefore their autonomy is highlighted in the context of giving rights advice as is required under the SDA8 in the context of assessing capacity, and the extraordinary loss of liberty which was prevalent in Re Koch.9 The express statutory provisions therefore are in recognition of the significance of the loss of an individual’s autonomy.
The Koch judgment stands for a proposition pursuant to the view taken by the Consent and Capacity Board, that: “to the extent the Koch judgment would import the right to Counsel, etc. to HCCA evaluations, it is obiter and not binding on the Board.”10 Similarly “the assessment and evaluation were conducted in a manner which, according to Quinn J. breached the natural justice rights of the applicant. The Court held that the applicant had the right to be informed of the significance of the finding of incapacity if so made at the end of the evaluation, the right to have Counsel or a friend present during an evaluation, the right to be told that she may refuse the evaluation, and the right to refuse to be evaluated.”11
The above document is the first portion of WEL paper: Representation of Persons Under Disability: The Legislative Framework (57 pages) -- click to download the complete document
1. Sec. 2(1) of the SDA - “2.(1) A person who is eighteen years of age or more is presumed to be capable of entering into a contract.”
2. Sec. 2(2) of the SDA – “2.(2) A person who is sixteen years of age or more is presumed to be capable of giving or refusing consent in connection with his or her own personal care.”
3. Sec. 3 of the SDA – “ 3.(1) If the capacity of a person who does not have legal representation is in issue in a proceeding under this Act, (a) the Court may direct that the Public Guardian and Trustee arrange for legal representation to be provided for the person; and (b) the person shall be deemed to have capacity to retain and instruct Counsel.”
4. A Guide to Consent and Capacity Law in Ontario, 2012 Edition, Darcy Hiltz/Anita Szigeti, LexisNexis, pages 24 and 25, An annotated guide
5. S. 3(1)(a) of the SDA
6.  O.J. No. 3528, 164 D.L.R. (4th) 176 at 218 (Ont. Gen. Div.).
7. ss.55, 57, 22 and 24 set out the criteria to be considered by the Court to appoint guardians of the person and property.
8. Sec 78(2)(b) of the SDA – “ 78.(2) Before performing an assessment of capacity, the assessor shall explain to the person to be assessed, (b) the significance and effect of a finding of capacity or incapacity ”
9. Re Koch, 1997 CarswellOnt 824, 33 O.R. (3d) 485, 27 O.T.C. 16; and 1997 CarswellOnt 2230, 35 O.R. (3d) 71, 28 O.T.C. 22
10. A Guide to Consent and Capacity Law in Ontario, 2012 Edition, Darcy Hiltz/Anita Szigeti, LexisNexis, page 196, footnote 165
11. A Guide to Consent and Capacity Law in Ontario, 2012 Edition, Darcy Hiltz/Anita Szigeti, LexisNexis, page 196, footnote 163
WEL article: “Between A Rock And A Hard Place: The Complex Role and Duties Of Counsel Appointed Under Section 3 of the Substitute Decisions Act, 1992″ by Kimberley A. Whaley and Ameena Sultan, as published in Advocates Quarterly, November 2012, Volume 40, Number 3.
This overview is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This information is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive. Whaley Estate Litigation Partners.Link to Practice Areas list