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Ontario Substitute Decisions Act

The Substitute Decisions Act establishes the legal criteria determining when a person has the ability to make decisions that are fundamental to his/her well-being. The ability to make these types of decisions is termed capacity and the decisions are termed consent. Capacity establishes the legal right to consent to or refuse medical treatment, choose housing arrangements and manage one's money. However, there are different tests for capacity that vary according the type of decisions that must be made. In some instances capacity will exist for people who do not have full capacity in the common sense understanding of the concept.

Contents 1 Capacity and Incapacity 2 Substitute Decision-Makers 3 Right to refuse an assessment 4 Assessment 5 Government Organizations involved with Incapacity 5.1 Capacity Assessment Office 5.2 Office of the Public Guardian and Trustee 5.3 The Consent and Capacity Review Board 5.4 Regulatory Bodies 6 Controversies 6.1 "Hired Gun" Assessors 6.2 "Slippery Slope" 6.3 Exploitation 6.4 Failure to receive "necessary care" versus "personal autonomy" 7 See Also 8 References

Capacity and Incapacity

Capacity is presumed under the Substitute Decisions Act. This means that before a person's right to make decisions for him/herself is removed it must be proven that they do not have capacity. Incapacity is the term for a person who cannot make these decisions.

In terms of medical treatment, incapacity is defined as not being able to "understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision." The key concepts are understanding information about a condition and appreciating the results of treatment options, including refusing treatment.

In terms of managing one's property, incapacity is similarly defined as being unable to "understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision."

Substitute Decision-Makers

If a person is found to be incapable they will have a substitute decision-maker appointed for them. A substitute decision-maker may be a family member, non-family members are exceptionally rare. The Office of the Public Guardian and Trustee may also be appointed to this role.

Whoever is appointed to make decisions for an incapable person is expected to make them in keeping with the same principles of the legislation, understanding the relevant information and appreciating the consequences of decisions. Decisions should also incorporate what can be reasonable known about the person's likely opinions, including preferences and cultural attitudes. A substitute decision-maker can be replaced if they are found to be not meeting their obligations.

Right to refuse an assessment

Under the Substitute Decisions Act, incapacity can only be determined by a formal assessment. However, a person has a right to refuse to be assessed. To ensure that this right is upheld, an assessor, prior to beginning and assessment must tell the person being assessed what they are doing, what is its purpose, what impact their finding will have and that the person being assessed has the right to refuse. If a person refuses to an assessment it cannot be conducted.

There are limits to a person's right to refuse an assessment. A Court may order an assessment of a person's capacity against their will if it determines that there are reasonable grounds to suspect that the person does not have capacity.

Assessment

The Capacity Assessment Office maintains a limited register of Capacity Assessors, who must be licensed physicians, psychologists, registered nurses, registered social workers or occupational therapists. Assessors must also hold liability insurance for up to $1,000,000, successfully complete a training course with the Capacity Assessment Office and complete ongoing continuing education. The Capacity Assessment Office does not make specific referrals, but they will provide the names of several Assessors based on a clients needs and location.

Assessments aim to answer the question of whether a person has capacity in keeping with the legislation. Exactly what methods they will use often depends on the skill set of the specific Assessor and the nature of the problem that they face. In other words, an assessment should always be comprehensive enough to understand a person's ability to make decisions for him/herself, but the decision may require only limited capacity. In this case, it can occur that a person who does not have full cognitive ability can still have capacity to make important decisions.

Government Organizations involved with Incapacity

Capacity Assessment Office

In Ontario the Office of the Ministry of the Attorney General oversees the Capacity Assessment Office. The Capacity Assessment Office ensures that only licensed Capacity Assessors are allowed to conduct capacity assessments and can assist members of the public in finding Capacity Assessors.

Office of the Public Guardian and Trustee

When a person has been found to be incapable the Office of the Public Guardian and Trustee can be appointed to manage their property, most often money, and to make housing choices for them.

The Consent and Capacity Review Board

A person who has been found incapable can appeal their finding before The Consent and Capacity Review Board. This Board is Composed of public and professional members and will review the history of a person's finding of incapacity and any history since that time. Reviews are permitted on a more frequent when basis when incapacity is first determined and then become more periodic once a set period of time has elapsed. A person is always eligible to have their capacity reviewed.

Regulatory Bodies

Since only regulated professionals are allowed to conduct capacity assessments, a person who believes that they have been treated unfairly by their assessor can lodge a complaint at the assessor's respective self-governing regulatory body. The self-governing bodies are: the College of Physicians and Surgeons of Ontario; the College of Psychologists of Ontario; The Colleges of Nurses of Ontario; The College of Social Workers and Social Service Workers and The Occupational Therapists College of Ontario. In addition, if a person feels that their lawyer has acted in way that has caused them harm they can contact the Law Society of Upper Canada.

Controversies

"Hired Gun" Assessors

There a danger that assessors will not be fully objective in certain circumstances. This conduct is most often associated with a professional who believes that his/her referral source will provide future business on the basis of receiving a predetermining finding. This type of misconduct can have serious negative impacts for a client. If a person who is capable is labeled as incapable their rights will be severely violated without just cause. On the other hand, a person who is incapable and is found capable is at risk of causing harm to him/herself or others.

"Slippery Slope"

It is a danger for people who are found incapable that they will be put into circumstances that steadily erode their independence. Careful attention must devoted to ensuring that the extents of incapacity as well as existing capacities are appreciated and balanced so that a person can be independent to the greatest extent possible.

It is also a concern on the part of many people found incapable, their family and patient advocates that careful attention is given to ensuring that treatments do not cause further incapacity. This concern has particular bearing for psychotropic medication and other treatments that affect the brain.

Exploitation

A person who loses the right to make decisions on their behalf is exceptionally vulnerable to many types of exploitation. A common form of exploitation is the expropriation of money for purposes that do not benefit the patient and are often clearly fraudulent. This type of exploitation can be perpetrated by a substitute decision-maker, an employee of the Office of the Public Guardian and Trustee, a lawyer representing the client or an employee in an institution.

Other types of exploitation can include abuse and neglect.

Failure to receive "necessary care" versus "personal autonomy"

There are times when the family or friends of a person, or their community as a whole, may believe that a person needs access to care that they are unwilling or unable to provide to themselves. On the other hand, many of these types of decisions are the most fundamentally personal and private decisions that a person will ever make. There is a conflict of interest in that the community's reasons for wanting a course of action to be imposed on a person are not necessarily the same as that person's, yet he/she is the one who will be required to make the change.

See Also

Ontario Health Care Consent Act

Ontario Mental Health Act

References

Substitute Decisions Act, 1992, The Capacity Assessment Office The Office of the Ministry of the Attorney General The Office of the Public Guardian and Trustee The Consent and Capacity Review Board The College of Physicians and Surgeons of Ontario The College of Psychologists of Ontario The Colleges of Nurses of Ontario The College of Social Workers and Social Service Workers The Occupational Therapists College of Ontario The Law Society of Upper Canada

Contributions: Pages Edited

Sylvia Watson

From Wikipedia, the free encyclopedia Jump to: navigation, search Sylvia Watson is a Canadian politician. She was a Toronto City Councillor for ward 14, part of the riding of Parkdale-High Park from 2003 to 2006 and the candidate for the Liberal Party of Ontario in the 2006 by-election and in the upcoming 2007 general election.

Contents [hide] 1 Life before Politics 1.1 Wellesley Hospital in-house legal counsel 1.2 City Solicitor, City of Toronto 2 City Council, City of Toronto 2.1 Accomplishments 3 Provincial By-election, 2006 4 Provincial General Election, 2007 5 External links 6 References and notes

[edit] Life before Politics Watson and her family immigrated to Canada when she was a child as displaced person from Austria following World War II. The family settled in Toronto, but had difficulty finding secure employment and housing.

[edit] Wellesley Hospital in-house legal counsel In 1986 Watson was hired as the head of in-house legal services for Wellesley Hospital in Toronto. This was the first time in Canada that a hospital had retained its own in-house legal counsel. During this period, the Ontario health care system faced with important new issues, such as the introduction of Ontario Health Care Consent Act and Ontario Substitute Decisions Act laws and the emergence of HIV AIDS.

Consent and capacity law was enacted by the Ontario Liberal government under David Peterson to protect the rights of patients by giving them the right to refuse treatment or, if they were found to be unable to make decisions for themselves, that a legitimate decision-maker would be appointed. Watson was tasked with interpreting and teaching consent and capacity law to physicians and nurses, and other hospital staff. In this role, Watson established hospital policy that a patient must consent to their treatment and that physicians have an obligation to inform their patients of the potential benefits and risks of this treatment.

Watson also sat on the ethics committee that created policies for handling the emerging crisis of HIV AIDS. Watson’s role on this committee was to provide ethical and legal advice regarding the issues of mandatory testing and disclosure of positive findings. Through this committee the hospital became one of the first to enact a formal policy against mandatory testing for the disease. The committee also directed the hospital to enact a policy that prohibited the notification of a patient’s sexual partner following a positive test for the disease without the patient’s consent. Instead, the committee adopted a policy to promote public awareness, including how HIV AIDS is transmitted, of safe sex techniques and of the benefits of regular testing. Wellesley hospital was one of the first public institutions to take this approach to HIV AIDS, though it is now widely accepted.

[edit] City Solicitor, City of Toronto In 1991 Watson left Wellesley hospital to become a litigator for the City of Toronto. She was then promoted to Director of Litigation and then was appointed to the position of City Solicitor – the head of legal services for the municipal government. Watson was the first woman to be act as City Solicitor in Toronto’s history.

As City Solicitor, Watson oversaw municipal government operations from the perspective of maintaining compliance with laws and best practices. This included rigorous reviews of contracts signed by and on behalf of the city. Watson required her staff to be exacting in examining city business and to report any suspected problems.

Watson also had the responsibility of advising City Council on all bills and reports. Specifically, Watson was required to certify the legal writing and legal writing of these documents. It is standard practice for a City Solicitor to reviews bills and reports in order to ensure that they follow proper legal form, but Watson’s policy of also requiring the certification of content was uncommon, neither practiced by her predecessor or successor, or by many other City Solicitors in other jurisdictions. By certifying a bill or report’s contents, Watson personally reviewed its likelihood of being invalidated by the Courts or leading to lawsuits against the city.

During this time Watson was involved in numerous important city government decisions, such as the creation of the megacity, the new amalgamated City of Toronto government. Watson played a central role facilitating the transition from 6 distinct city governments into one much larger organization.

As City Solicitor, Watson also was involved in the attempted conversion of two apartment buildings at 104 and 105 Westlodge Ave. into co-ops. These two buildings were put into receivership by the municipal government, which Watson oversaw. The buildings were re-purchased by the original owners, who were able to present the highest bid for them, and so a community based plan to convert them into co-ops did not occur. However, the owners were required to meet new conditions by the city that significantly upgraded the buildings’ facilities.

[edit] City Council, City of Toronto After leaving her post with the municipal government, Watson made the unusual decision to seek election to public office instead of finding more lucrative employment in a private sector law firm. She was elected in the 2003 municipal election replacing the long serving Chris Korwin-Kuczynski who retired from politics.[1] She handily beat a field of seven other candidates.[2] Watson handily beat a field of seven other candidates, with a total of 53% of the vote, more than double her closest rival.[2]

Once elected, Watson opened the first constituency office in Parkdale in 25 years and held a record number of community meetings: over 60 during her 30 months as a City Councillor. Watson also published a popular weekly newsletter that informed citizens about city politics and government programmes.

[edit] Accomplishments Watson's voting record established her as independently-minded. On many positions she was left-leaning, supporting mayor David Miller's initiatives. At other times, Watson was willing to go against the mayor if she did not endorse his policies. In voting on the Council and in the other activities she undertook, Watson was outspoken in following her own beliefs about what was good public policy and what was in her constituency’s interests and chose not to align herself with any particular block of Councillors.

During her tenure, Watson accomplished several important policy goals that had been desired from her constituents for many years.

Watson was able to have the city install a traffic light at the corner of Jameson Ave. and Queen St. This intersection does not align with the Queen St. and Lansdowne Ave. (link) intersection that is half a block to its East and continues North. Since Jameson Ave. flows North off of the Gardiner Expressway and Lakeshore Boulevard, it experiences heavy North-South traffic and had been the cause of serious congestion and safety concerns for many years.

Watson led the expropriation of a long-abandoned building on Queen Street, east of Dunn Ave.. This expropriation of property was a first by the municipal government and was viewed negatively by people who saw property rights as unlimited. However, community members argued that the building, which had been abandoned for years and was in a state of disrepair, promoted crime. This region of Parkdale had not experienced the same level of gentrification as other areas and

Watson also pushed the municipal government to revoke the liquor licenses of two bars on Queen St. that were associated with narcotics use and trafficking (link). In following Watson’s direction, the city took exceptional action. The closing-down of these businesses was even more unusual because it took place in Parkdale, which for years had been associated with narcotics and related criminal activities. Following the closing of these bars retail businesses have opened in these locations.

The park at the corner of Sorauren and Wabash Ave.s had been at the center of a long-running dispute between former Councillor Korwin-Kuczynski and the owner of a building beside it. The owner had sold the building to the city, which planned to turn it into a recreation centre. When these plans appeared to stall because of a lack of money, Watson was able to get the city to clean the environment around the building and renovate a smaller building also on the property so that it could be turned into a field house for the park. The recreation centre has still not been built, but the park is uncontaminated and has better resources for the surrounding community. However, in 2004 Watson voted against a citywide pesticide ban, despite the recommendation of the city's medical officer of health, to the dismay of many who considered this a progressive policy.[3]

Another decision that was highly controversial was Watson’s support for the creation of a parking lot on the median of Lakeshore Boulevard in order to service the Palais Royale. Watson’s supporters argued that without a parking lot the historic landmark, which had recently been condemned, would be torn down. On the other hand, her detractors argued that it was anti-environmental to pave-over grass and up-root trees. Watson took the stand that even if it was controversial she believed it was for the long-term benefit of the community and she would support it. Ultimately, because a parking lot was promised by the city, a new tenant was found for the heritage site who invested approximately $3.5 million dollars to renovate it and paid for landscaping of the parking lot, thereby avoiding the loss of a single tree, the planting of new vegetation and also avoiding the use of pavement. A stoplight was also added to Lakeshore Boulevard at the entrance of the parking lot, which is also a dangerous curve with a hidden u-turn point.

[edit] Provincial By-election, 2006 In June 2006, Watson withdrew her candidacy for re-election to city council in order to run unsuccessfully as an Ontario Liberal Party candidate to succeed Gerard Kennedy in the Parkdale—High Park by-election. The Liberals fully supported her candidacy, with eleven ministers making visits to her riding, including Premier Dalton McGuinty who made three trips there. Kennedy, who had resigned to contest the federal Liberal leadership, and Bob Rae, a long-time resident of the riding, who had represented it before in the provincial legislature as the Premier of the NDP government, and was now also running for the leadership of the federal Liberal Party, also made campaign stops in the riding.[4]

Some saw the election as indicating a differential between the Liberals' popularity and Kennedy's personal popularity. Kennedy's work as food bank director and education minister appealed to the many NDP voters in the riding. However, by-elections are typically understood to be a test of government’s approval rather than of a newly selected candidate’s popularity. Indeed, Watson was apparently unable to tap into Kennedy’s popularity. Pushed into defending the McGuinty government's record of education and health care, her opponents targeted numerous Liberal broken promises, including delaying the replacement of coal-fired power plants, and the addition of the $2.4-billion health premium after campaigning on a pledge to not raise taxes.[4] As a result, Watson was largely unable to inform constituents outside of Parkdale of her record as a City Councillor and what she had accomplished before this. In the last week of the election, falling behind in polls, her campaign released a number of controversial press releases attacking NDP candidate Cheri DiNovo. These releases made reference to DiNovo's LSD use at a younger age and alleged that she endorsed the church ordination of pedophiles and axe murderers in Qu(e)erying Evangelism. They also claimed that DiNovo had made past comments in which she compared Canadian murderer Karla Homolka to a Christ-like figure. Education minister Sandra Pupatello said "DiNovo's comments do not reflect the views of any candidate who should be running for office". Both NDP and Conservative candidates for the riding denounced the press releases as mudslinging, saying that DiNovo's comments were taken out of context. The backlash extended to the Premier himself, with NDP MPPs accusing him of condoning and even orchestrating the smear attacks. McGuinty himself claimed that he was unaware of the press releases.[5][6]

[edit] Provincial General Election, 2007 On May 11, 2007, the provincial Liberals nominated Watson to stand again in Parkdale—High Park for the upcoming 2007 Ontario election.[7]

[edit] External links Wikinews has related news: New Democrats score upset in Ontario's Parkdale-High Park by-electionCity biography Personal website Campaign website

[edit] References and notes ^ Byers, Jim. "Diverse ward a tale of two parks", The Toronto Star, 2003-11-04. Retrieved on 2007-08-12. (English) ^ "GTA Votes:Toronto Results", The Toronto Star, 2003-11-11, pp. B2. Retrieved on 2007-08-12. (English) ^ "Part (1) of motion (b) by Councillor Filion, in Clause No. 1 of Joint Report No. 1 of the Economic Development and Parks Committee and the Works Committee, headed "Implementation of the City's Pesticide By-law".", Minutes of the Council of the City of Toronto May 18, 19 and 20, 2004, City of Toronto, May 20, 2004. Retrieved on 2007-08-12. (English) ^ a b Howlett, Karen, ARMINA LIGAYA. "NDP thumps Liberals in vicious by-election", The Globe and Mail, 2006-09-15. Retrieved on 2007-08-12. (English) ^ Canadian Press. "NDP claims candidate smeared in T.O. byelection", CTV Toronto Website, CTV, 2006-09-12. Retrieved on 2007-08-12. (English) ^ Howlett, Karen. "Mud flies in west-end by-election", The Globe and Mail, 2006-09-12. Retrieved on 2007-08-12. (English) ^ Parkdale-High Park: Sylvia Watson (HTML). Candidate Details. Liberal Party of Ontario (2007-05-11). Retrieved on 2007-08-12. Retrieved from "http://en.wikipedia.org/wiki/Sylvia_Watson"