Mental Incapacity, Guardianship, and the Elderly: An Exploratory Study of Ontario's Consent and Capacity Board

Canadian Journal of Law and Society

Volumn 18, Issue 1, 2003, Pages 131-145

  Doron, Israel ^a  

^a UNIVERSITY OF HAIFA   (Israel)

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[No Author keywords available]

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EID: 11144312740     PISSN: 08293201     EISSN: 19110227     Source Type: Journal    
DOI: 10.1017/S082932010000750X     Document Type: Article

References (56)

1. This definition is based on Abuses in Guardianship of the Elderly and Infirm: A National Disgrace (Washington D.C.: Subcommittee on Health and Long Term Care, One Hundredth Congress, 1987) at 1 [A National Disgrace].
2. Associated Press Report found that in one county of Florida, 85 % of the wards were elderly people.
3. Other empirical research in this field also supports this finding (F. Bayles & S. McCartney, Associated Press (1987) as published in A National Disgrace, Associated Press Report found that in one county of Florida.).
4. See also C. Stevenson & E. Capezuti, “Guardianship: Protection Versus Peril” (1991) Geriatric Nursing 10 (the mean age of wards was found to be 81 years)
5. P.M. Keith & R.R. Wacker, Older Wards and Their Guardians (Westport: Praeger, 1994) [“Guardianship”] (the average age of wards was found to be 81 years)
6. The population over the age of sixty-five has grown considerably since the turn of the century. In 1901, there were roughly 250,000 persons of this age range residing in Canada; by 1981, their number reached almost 2.4 million, and in 1995 there were already 3.6 million seniors living in Canada. Proportionally, persons over the age of sixty-five represented 4.8 % in 1921, 12 % in 1995, and by 2026 this figure is expected to reach twenty percent of the population. See A Portrait of Seniors in Canada, 2nd ed (Ottawa’ Canada Statistics, 1997) [Seniors in Canada] at 11
7. See Lunacy Act R.S.O. 1887, c. 54.
8. For a broader background on these legal terms see I. Doron, “From Lunacy to Incapacity and Beyond. Guardianship of the Elderly and the Ontario Experience in Defining “Legal Incompetence” (1999) 19:4 Health Law in Canada 95
9. [“From Lunacy to Incapacity”] at 100.
10. The Mental Incompetence Act, R.S.O. 1937, c. 110.
11. For background on this legislation see “From Lunacy to Incapacity”, The Mental Incompetence Act, at 101.
12. Ontario's new adult guardianship legislation, enacted in 1992, included three novel pieces of legislation: the Consent to Treatment Act, S.O. 1992, c. 28 [Consent to Treatment Act]
13. the Substitute Decision Act, S.O. 1992, c. 30 [SDA or Substitute Decision Act]
14. the Advocacy Act, S.O. 1992, c. 26 [Advocacy Act].
15. It should be noted that in 1996 the Advocacy Act was repealed and the Consent to Treatment Act was replaced by the Health Care Consent Act [HCCA].
16. This was done under the Advocacy, Consent and Substitute Decision Statute Law Amendment Act, R S.O. 1996, c. 2. While significant changes were made under these amendments, the core rationale in Ontario's shift from a medically based guardianship regime to an autonomy-respecting guardianship regime remained intact.
17. See S. V. Fram, Chair, Final Report of the Advisory Committee on Substitute Decision Making for Mentally Incapable Persons (Toronto: Ontario Government Publications, 1987)
18. D. N. Weisstub, Chair, Enquiry on Mental Competency - Final Report (Toronto: Ontario Ministry of Health, 1990)
19. S. O'Sullivan, Chair, You've Got a Friend, (Toronto: Ontario's Ministry of Health, 1989).
20. See “From Lunacy to Incapacity”, You've Got a Friend 7 at 103.
21. For a historical overview of the OCCB see D. J. Hiltz, J. Bradford & R. Kunjukreishnan, “The Consent and Capacity Board” in H. Bloom & M. Bay, eds., A Practical Guide to Mental Health, Capacity and Consent Law of Ontario (Toronto: Carswell, 1996) 207.
22. See especially Part V of the HCCA, A Practical Guide to Mental Health, Capacity and Consent Law of Ontario 9.
23. Information provided by Michael Bay, Chair, OCCB: interview, 6 March 2000.
24. L.A. Frolik, “Guardianship Reform: When the Best is the Enemy of the Good” (1998) 9 Stan. L. & Pol'y Rev. 347 at 348.
25. The decision to base the study on a sample of 100 cases resulted from practical constraints regarding accessibility to files. Statistically, these 100 files represent actually more than 250 files or 10 % of the OCCB's annual caseload activity (including files with no hearing or no decision: see infra note 23).
26. It should be noted, however, that the majority of the elderly population lives in urban areas, thus making this limitation less significant in comparison to studies about the population in general. See Seniors in Canada, infra 5, at 14.
27. infra, at 10.
28. Women constitute 58 % of people aged 65 and older (See Seniors in Canada, infra 5).
29. See Guardianship, infra 4.
30. For various reasons, elderly women have smaller informal social-support networks, resulting in greater reliance on formal, state-funded community-based long-term care systems. From this perspective, the findings of this study support the argument made by others that Ontario's current community-based long-term care policies fail to provide the needed support for elderly women. See P. Armstrong & H. Armstrong, Women, Privatization and Health Care Reform: The Ontario Scan (Toronto: NNEWH Working Paper Series #10, 1999)
31. S. M. Neysmith, “Towards a Woman-Friendly Long-Term Care Policy” in P. M. Evans & G. R. Wekerle, eds., Women and the Canadian Welfare State: Challenges and Change (Toronto: University, of Toronto. Press, 1997) 222.
32. Women and the Canadian Welfare State: Challenges and Change 6 and accompanying text.
33. See D.K. Foot, Boom, Bust & Echo (Toronto: Stoddart, 2001).
34. “Paternalism” and “autonomy” are complex concepts. Not all forms of state paternalism are morally wrong or legally unjustifiable per se. For attempts to define “paternalism” and draw the line between the two concepts see G. Dworkin, “Paternalism” in E. Freeman, ed., The Abdication of Philosophy: Philosophy and the Public Good (Illinois: Open Court, 1976) 209
35. J. Feinberg, “Paternalism” in R. Sartorius, ed., Paternalism (Minneapolis: University of Minnesota Press, 1983) 7
36. R. Carter, “Justifying Paternalism” (1977) VII Canadian Journal of Philosophy 133
37. D. Van De Veer, Paternalistic Intervention: The Moral Bounds of Benevolence (Princeton: Princeton University Press, 1986). For the purposes of this study, “paternalism” is any interference or constraint with a person's liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced or controlled.
38. It should be noted that OCCB's overall record includes decisions that do not demonstrate a similar commitment to the value of personal autonomy. The most obvious examples are Re Koch [1997] 33 O.R. (3d) 485 (Gen. Div.)
39. Starson v. Swayze, [1999] O.J. No. 4483 (Sup. Ct.). In both cases, the OCCB rejected appeals over finding of incapacity and in both cases, the courts later overturned the OCCB's decisions. The courts' decisions showed how OCCB failed to give proper weight to personal autonomy and made paternalistic value judgements with regards to the appellant's mental condition. The Koch decision was made prior to the cases examined in this study and one may thus argue that the findings of this study reflect the Board's implementation of the Koch lesson.
40. For an analysis of political and social factors that brought about the abolishment of the Advocacy Act, see E.S. Lightman & U. Aviram, “Too Much, Too Late: The Advocacy Act in Ontario” (2000) 22:1 J.L. Soc. Pol'y 25 [“The Advocacy Act in Ontario”].
41. See section 59 of MHA and see A.G. case J.L. Soc. Pol'y, at 2.
42. J.L. Soc. Pol'y.
43. J.L. Soc. Pol'y, at 5.
44. In their interviews, both Michael Bay, J.L. Soc. Pol'y 15
45. Judith Wahl, Head of ACE -Advocacy Centre for the Elderly in Toronto, Ontario (interview, 29 December 1999) expressed concerns about how the rights of elder people were not observed by assessors, physicians, and other care providers.
46. This relates to a much broader social phenomenon of professional paternalism and its impact on patients and the elderly. See in general E. Keen, Drugs, Therapy, and Professional Power (Connecticut: Praeger, 1998) at 157–165.
47. See also H. Hayry, The Limits of Medical Paternalism (London: Routledge, 1991)
48. J. Katz, The Silent World of Doctor and Patient (New York: Free Press, 1984).
49. See “From Lunacy to Incapacity”, The Silent World of Doctor and Patient 7.
50. There is no up-to-date data with regard to the actual use of advance directives in Ontario available. For a comparative view on the situation in the U.S.A. see Where There Is a Will. Legal Documents Among the 50+ Population (Washington: AARP, 2000).
51. For a description of the circumstances under which mediation has best chances of success, see the general discussion on mediation in S. N. Gary, “Mediation and the Elderly: Using Mediation to Resolve Probate Disputes Over Guardianship and Inheritance” (1997) 32 Wake Forest L. Rev. 397 at 398 [“Mediation and the Elderly”]. Some of the OCCB cases were classic mediation cases, in the sense that it was clear that all parties had a common goal, had a very close personal relationship, and all had to continue to engage in personal relationships after the specific dispute was resolved. See for example the M.S. case (TO-99/344, case number 7), which involved a family dispute between the four children of an eighty-three year old woman over the location of a facility for her long-term care. All four adult children cared for their mother and all would have continued to hold close personal relationships with regard to their mother's care.
52. For successful experience with mediation, see R. Talbert & N. Karp, “Collaborative Approaches: Aging, Disability, and Dispute Resolution” (1995) Clearinghouse Review 638.
53. See also N. Karp & E. Wood, “Mediating Nursing Home Care Disputes: A Workable Option?” (1997) Clearinghouse Review 243 [“Mediating Nursing Home Care Disputes”].
54. See also N. Karp & E. Wood, “Mediating Care Conflicts in Nursing Homes” (1996) Mid-Atlantic Ethics Committee Newsletter 1.
55. Mid-Atlantic Ethics Committee Newsletter, at 10–11.
56. See also the K.W. case (TO-98/495, case no. 12), where the finding of incapacity with regard to admission to a care facility could have been avoided if proper community care services were available. For a broader perspective on Ontario's long-term care policy, see A.P. Williams et al., “Long-Term Care Goes to Market: Managed Competition and Ontario's Reform of Community-Based Services” (1999) 18:2 Canadian Journal on Aging 125.