THE VULNERABLE PERSONS LIVING WITH A MENTAL DISABILITY ACT Substitute Decision-Making Provisions

1. THE VULNERABLE PERSONS LIVING WITH A MENTAL DISABILITY ACTSubstitute Decision-Making Provisions General VPA Overview and SDM Provisions JoAnne Reinsch, Vulnerable Persons’ Commissioner Larisa Wydra, Program Specialist

2. Key Messages • Vulnerable Persons Act (VPA) Overview • Key Definitions • Guiding Principles • Role of the VPCO • Substitute Decision Maker (SDM) - When can I apply? • Applying for a SDM • Duties & Responsibilities of the SDM • Other Provisions of the VPA

3. THE VULNERABLE PERSONS LIVING WITH A MENTAL DISABILITY ACT Underlying assumption that individuals living with a mental disability should have the opportunity to make their own decisions and direct their own lives with support if necessary

4. THE VULNERABLE PERSONS LIVING WITH A MENTAL DISABILITY ACT (VPA) - Overview • Proclaimed in 1996 • Act or law that sets out, protects and ensures the rights of vulnerable persons in Manitoba are respected • Key Provisions: • Guiding Principles • Support Services • Protection & Emergency Intervention • Substitute Decision Making (SDM)

5. Key Definitions/Terms: Vulnerable Person means an adult living with a mental disability who is in need of assistance to meet his or her basic needs with regard to personal care or management of his or her property. Mental Disability means significantly impaired intellectual functioning existing concurrently with impaired adaptive behaviour and manifested prior to the age of 18 years (excludes a mental or psychiatric disorder as defined under The Mental Health Act.)

6. Key Definitions/Terms: (contd) Incapacity/Unable to make a decision When she or he is not able to understand information that is relevant to making a decision about personal care or the management of property, or is not able to appreciate the reasonably foreseeable consequences of a decision, or lack of one.

7. Key Definitions/Terms: (contd) Support Network One or more persons who provide advice, support, or assistance to a vulnerable person, and may include: • Vulnerable Person’s Spouse • Family Members, and • Others Chosen by the Vulnerable Person (can include paid service/care providers)

8. Key Definitions/Terms: (contd) Supported Decision Making: • Vulnerable person enabled to make and communicate decisions with advice/assistance from a support network. Substitute Decision Making: • Substitute Decision Maker (SDM) makes decision in the place of vulnerable person.

9. The Five Guiding Principles

10. Five Guiding Principles • Vulnerable persons are presumed to be competent to make their own decisions, unless demonstrated otherwise;

11. Five Guiding Principles (cont’d) 2. Vulnerable persons should be encouraged to make their own decisions; 3. The vulnerable person’s support network should be encouraged to assist the vulnerable person in making decisions so as to enhance his or her independence and self-determination; 4. Any assistance with decision making that is provided to a vulnerable person should be provided in a manner which respects the privacy and dignity of the person and should be the least restrictive and least intrusive form of assistance that is appropriate in the circumstances;

12. Five Guiding Principles (cont’d) • Substitute decision making should be invoked only as a last resort when a vulnerable person needs decisions to be made and is unable to make these decisions by himself or herself or with the involvement of members of his or her support network.

13. Role of the Vulnerable Persons Commissioner’s Office • Commissioner adjudicates requests for substitute decision makers • Warranted? – a vp, incapable even with asst, decisions to be made, SDM reasonable in circumstances • If so, parameters of the SDM appointment (whom, powers, length, etc.) • Ensure natural justice and procedural fairness occur **Taking away fundamental right to make decisions/to self-determination**

14. “When can I apply for a SDM?” VPA provisions: • Criteria: • A vulnerable person • An involved support network • Individual incapable of personal care/managing property on own or with the involvement of the support network • Decisions to be made • Any person may apply….(who) believes there is a need for a SDM

15. “Why do I believe the individual needs a SDM?” Some questions to ask oneself: • Based on current circumstances, what is the specific reason why I believe the Individual needs a SDM? • Have we reached the “only as a last resort” threshold of Principle 5? • Through the involvement of family, friends, service providers, are the Individual’s needs and best interests being met?

16. SDM Application Process Step 1 – The Application • Someone believes an adult living with a mental disability needs a substitute decision maker • They send an application to the Office of the Vulnerable Persons’ Commissioner

17. SDM Application Process Step 2 – Preliminary Investigation • Commissioner’s Office looks at the situation to see whether a substitute decision maker “appears” to be needed • Do a preliminary investigation

18. SDM Application ProcessStep 2 – Preliminary Investigation Looking for: • Definition of vulnerable person is met • An involved support network • Decisions to be made • Not able to make decisions even with assistance of support network • If all appear to be true, Commissioner asks a Hearing Panel to review situation and make a recommendation • Notice is given to all parties involved

19. SDM Application Process Step 3 – Hearing Panel • Hearing Panel meets with vulnerable person, family, and others in support network • Ask questions about: • The vulnerable person • The help the vulnerable person needs • The decisions that need to be made and that the vulnerable person is not able to make • Who the substitute decision maker should be • How long

20. SDM Application Process Step 3 – Hearing Panel • Hearing Panel tells Commissioner what they heard and whether they think the vulnerable person needs a substitute decision maker (via written recommendations)

21. SDM Application Process Step 4 – Commissioner’s Decision Commissioner decides: • does the vulnerable person need a substitute decision maker or not? • Is the individual a vulnerable person? • Incapable of personal care/managing property even with assistance of support network? • Are there decisions to be made?

22. SDM Application Process Step 4 – Commissioner’s Decision SDM Appointment: • Who the substitute decision maker will be • For what area – personal care and/or property • For what type of decisions • For how long the substitute decision maker (only as long as necessary but not more than 5 years) • Terms and conditions (if applicable) Public Trustee appointed if no one available

23. Step 4 – Commissioner’s Decision • All parties who received notice of the application receive notice of the Commissioner’s decision • SDM and vulnerable person receives legal Appointment Document outlining authority • Decision can be appealed to Court of Queen’s Bench – within 30 days

24. SDM Duties: • To perform duties diligently, with honesty and integrity and in good faith • To assist a vulnerable person in making decisions • To foster independence • To encourage participation in decision making • Choose the least restrictive and least intrusive course of action • Should only take control and make the decision when the vulnerable person is not able to (not able to understand info and appreciate consequences) • When making decisions, think about the vulnerable person’s wishes, values, beliefs • Make decisions in the best interest of vulnerable person

25. SDM - Health Care Specific Duties and Issues (where appointed) Best interest considerations... Whether vulnerable persons’: • Condition/well-being likely to be improved by proposed health care • Condition/well-being likely to be improved without proposed health care • Whether the benefit outweighs the risk of harm • Is less restrictive or less intrusive health care and reasonable alternative • Right to health care information (over-rides other legislation restricting access)

26. Best Interests BALANCE PROTECTION VS. LEARNING EXPERIENCE LEAST RESTRICTIVE & LEAST INTRUSIVE SELF-AWARE BENEFITS VS. RISKS COMMON SENSE WELL INFORMED

27. SDM Accounting Duties and Responsibilities Where appointed with property powers: • File an opening inventory within 6 months • Report on true inventory of individual’s property, debts and liabilities • File annual accounting reports thereafter • Report on property, debts, liabilities, receipts and disbursements

28. Absolute Exclusions • Medical treatment for primary purpose of research; • Sterilization that is not medically necessary, • Removal of tissue for transplant, • Voluntary admission to a psychiatric facility, • Adoption or guardianship of a child, • Participation in any activity or project whose primary purpose is research • Need court approval to place vulnerable person in developmental centre (excludes respite)

29. Review of Appointment • Towards the end of appointment, a review is undertaken to decide whether a substitute decision maker is still needed; • If so, are the parameters of the appointment still appropriate • Renewed based on current circumstances

30. Variation, Termination & Replacement to Substitute Decision Maker Appointment • During the term, if changes are needed, requests can be made to the Commissioner’s Office

31. Emergency Substitute Decision Maker • Provisions to make an emergency appointment of a substitute decision maker • 30 day appointment

32. Other VPA Provisions Support Services • Support Services may be provided (ex. residential services, counselling, vocational rehabilitation, life skills programs, etc.). • Sets out provisions for an Individual Plan for every vulnerable person receiving support services – a participative approach.

33. Other VPA Provisions Protection and Emergency Intervention • Duty to Report Abuse and Neglect - mandatory reporting by service providers, SDM, Committees where one “believes on reasonable grounds… is or likely to be abused or neglected” • Authority to Investigate • Authority for Protective Action • Emergency Intervention

34. Wrap-Up: • Guiding principles • The importance of the support network • Some considerations when thinking about applying for a SDM • Steps of the application and hearing process • The role and duties of the SDM

35. For more information on the substitute decision maker provisionsContact: Office of the Vulnerable Persons’ Commissioner 305-114 Garry Street Winnipeg MB R3C 4V7 Telephone: (204)945-5039 Toll Free: 1-800-757-9857