The Right to Legal Capacity and Supported Decision Making

1. The Right to Legal Capacity and Supported Decision Making By Michael Bach Canadian Association for Community Living

2. Legal Capacity: Recognition of a Person’s Right to Make Health Care Decisions CRPD Articles: 15, 25, 26 Financial/Property Decisions (purchase, sale, credit, investment, will)CRPD Articles: 12(5),28 Personal Life Decisions (where to live, relationships, participation, access, employment, mobility and supports)CRPD Articles: 13, 14, 15, 18, 19, 20, 23, 25, 26, 27, 28, 29, 30

3. Types of Decision Making Status • community Legally independent Supported Facilitated/ Representative

4. What is supported decision making? • Legal right to supports needed to make, communicate and act on decisions about: • personal care • finances • health care • to make an oath, give evidence • Legal requirement that others (physicians, etc.) respect and accommodate supported decisions • Provision of support to assist an individual in making decisions, and to assist others in seeing an individual as a full person

5. Principles • All individuals have a will – which can be expressed by the individual… or interpreted and described by others • A person’s will or intention forms the basis for competent decision making… • People are not inherently incompetent or incapacitated – Decision-making processes are…

6. … Principles • All individuals have potential to evolve their capacities • Other party’s interests and liability concerns do not, on their own, justify removing a person's decision-making rights.

7. Supported decision making via a Network… • A group of trusted others to assist in: • Expressing will and intent • Personal identity (helping tell a person’s life story)

8. community Putting Support Networks into Law, Policy and Practice 3. Law/policy protects 3rd parties & funds Capacity-building for support & advocacy 1. Law/policy recognize right to supports, protection from abuse, advocacy, & appeals 5. Personal network: listens, advises, helps communicate and connect 4. Person chooses network members 2. Law and policy provide for status to network, back-up support, registration & monitoring of the network

9. Facilitated & Representative Decision Making Status • People with an advance directive • People who are not able to act legally independently or through supported decision making status • No evidence that the person understands and appreciates the consequences of a decision, even with support, sufficient to protect against ‘serious adverse effects,’ or to make needed personal, health or financial decisions. • Obligation to invest in relationship-building supports so the person’s intentions can be known

10. Legally independent decision-making status Supports & Accommodation not yet feasible Supports & Accommodationsufficient Supported decision-making status Supports & Accommodation not yet feasible Maximizing Legal Capacity Supports & Accommodation sufficient Facilitated/ Representative decision-making

11. British Columbia - Representation Agreement Act • Provides for a person to appoint and identify: • Who will be representatives • Who will be a monitor of the representatives and decision making process • Particular ways of communicating, expressing

12. (a) whether the adult communicates a desire to have a representative make, help make, or stop making decisions; (b) whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others; (c) whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult; (d) whether the adult has a relationship with the representative that is characterized by trust. Test of ‘incapacity’ for entering a representation agreement

13. Framework to safeguard the right to legal capacity • Legislated Framework for Legal Capacity and Decision-making Supports • Right to legal capacity without discrimination • State obligation to provide supports • Third party duty to accommodate in decision-making processes to the point of undue hardship • State duty to ensure accommodations to the point of undue hardship, beyond third party duty

14. Framework 2. Legislated duties of representatives and monitors: • Act diligently, honestly and in good faith; • Act in accordance with all applicable legislation; • Act in accordance with any relevant agreements or Administrative Tribunal orders; • Keep information about the adult, and his/her affairs, confidential; • Keep records in relation to all aspects of their role; and, • Involve supportive family members and friends.

15. Framework • Monitors • Community-based resource centre • Provides assistance to individuals to plan and access needed supports • Facilitates network development • Provides information and referral • Legal Capacity and Support Office • Investigation allegations of ‘serious adverse effects’ (abuse, neglect, harm to others) • Arrange for needed supports • Act as representative or facilitator of last resort

16. Framework 6. Administrative Tribunal with a Focus Exclusively on Decision-Making Jurisdiction over decision-making disputes, related to: • Duty to accommodate; • State provision of supports; • Decision-making status; • Appointment of supporters and facilitators and the approval of people applying to act as supporters; • Appointment of monitors – where the Administrative Tribunal determines that supporters or facilitators are not meeting their legal obligations

17. Framework 7. Access to Legal Counsel • To take cases to the Tribunal should an individual be unable to pay. 8. Formal Advocate • Provide advice in relation to decision-making statuses • Provide information to people re: legal processes and options • Explain nature of legal proceedings and orders • Support individuals to address neglect and abuse by the representative or facilitator.

18. Safeguarding right to legal capacity –decisions for non-therapeutic treatments that fundamentally affect personal integrity • Legally independent status – any decisions allowable by law • Supported decision-making status – reviewed by Tribunal • Facilitated status – not possible to make these decisions

19. Safeguarding right to legal capacity – in the face of ‘serious adverse effects’

20. ‘Serious Adverse Effects:’when a person, as a result of his/her actions, or those of others: • Experiences loss of a significant part of a person’s property, or a person’s failure to provide necessities of life for himself or herself or for dependants; or • Experiences serious illness or injury, and deprivation of liberty or personal security; or • Has threatened or attempted or is threatening or attempting to cause physical and/or psychological harm to himself or herself; or • Has behaved or is behaving violently towards another person or has caused or is causing another person to fear physical and/or psychological harm from him or her.

21. Dignity of risk and ‘serious adverse effects’ • People in legally independent status can choose serious adverse effects – provided there is no immediate medical emergency or criminal behaviour. • People in supported d-m status can choose serious adverse effects – provided supporters and representatives are meeting fiduciary responsibilities • Facilitators/Representatives cannot make decisions that place people who are in a facilitated/representative status in a situation of serious adverse effects, nor can they refuse planning assistance or supports where there is substantial risk of serious adverse effects

22. Proposed Response to allegations of serious adverse effects • Legal Capacity and Support Office • Investigates • Offers supports • Makes recommendations to Tribunal if there is question about decision-making status • Makes referral to police where criminal activity is suspected • Arranges for medical treatment where a medical emergency • Revisits and offers planning support where a person refuses supports and serious adverse affects are suspected (for those in legally independent status)

23. Responding to serious adverse effects • Health professionals cannot authorize involuntary committal to a facility or involuntary treatment unless it is a medical emergency • Only an adult in a facilitated/representative status can be admitted to a facility without his or her consent, and: • If serious adverse effects are occurring • By request of the facilitator, and only after the facilitator has consulted with a professional • The Tribunal must review the facilitator’s request (wherever the person is) and may authorize admission – and can seek medical advice in these situations • If the adult resists admission, independent legal counsel and advocacy must be made available to the adult, in a hearing before the Tribunal

24. Responding… • After a hearing, the Tribunal may authorize admission for a limited period of time, with the consent of the facilitator, but must specify a period of review , or may direct appropriate authorities to make needed community services available • the sole purpose of admission being to remove the person from a situation of serious adverse effects that cannot be reasonably accomplished in any less restrictive manner • The facilitator may consent to treatment as long as the adult does not refuse or actively resist the treatment. • If the adult does refuse or actively resist treatment, it may be administered only if it is deemed a medical emergency • Legal Capacity and Support Office must be notified immediately of any request for or authorization of admission, review why community supports were not available or adequate, and assist the facilitator to search for and arrange community-based supports to be accessed as soon as possible

25. Criteria of Medical Emergency • Demonstrable severe suffering or an imminent threat to the life or health of the patient. • Undoubted necessity to proceed at the time. • Treatments limited to those necessary to prevent prolonged suffering or to deal with imminent threats to life, limb or health. • The known wishes of the patient must be respected. • Physician must be satisfied – no indication by way of Advance Directive or otherwise that the patient does not want the proposed treatment.