Webcast archive: Guardianship, revisited

This week, we look at Canada’s compliance with Article 12 of the CRPD, plus a brief update on the Cadotte case.

In this episode of Euthanasia & Disability, Amy Hasbrouck, Christian Debray, and Taylor Hyatt discuss:

  • Guardianship, revisited
  • Cadotte sentenced to two years for manslaughter

Please note that this text is only a script and that our webcast contains additional commentary.

GUARDIANSHIP, REVISITED

  • At the end of April, we discussed the United Nations Special Rapporteur’s visit to Canada. In the statement summarizing her findings, Catalina Devandas Aguilar said “persons with intellectual and psychosocial disabilities are systematically denied their legal capacity through substitute decision-making regimes, such as guardianship and curatorship” which affected nearly 21,000 people in Ontario and 34,000 people in Quebec.
  • A few years ago, the Canadian Association for Community Living released a policy document explaining that, under substitute decision-making systems like guardianship, people have “no power to make, control, or even influence decisions about issues that are important to them.”  Substitute decision-making arrangements contribute to the perception “that the individual is not a full person, but rather an object to be managed by others.”
  • Ms. Devandas pointed out that “successful” supported decision-making programs exist in British Columbia, though they “lack…[a] legal framework” that would allow them to be offered on a larger scale. She points out that “all [provincial and territorial] legislation on legal capacity contradicts article 12 of the Convention on the Rights of Persons with Disabilities (CRPD).”
  • Supported decision making is an alternative to guardianship that respects the person’s rights, allowing them to have the final say in as many areas of life as possible. Contrary to common fears, true supported decision making occurs when – as an article in the Psychiatry, Psychology and Law journal states – “the individual [is] assisted to become aware of his or her responsibilities and of the implications of his or her choice.”
  • While supported decision making is most well-known in the context of intellectual disabilities, people with psychiatric disabilities benefit as well. The journal article notes that Canadian procedures were not designed with “extreme mental stress” in mind. Having difficulty making decisions doesn’t mean a person should be deprived of the right to direct their life.
  • Article 12 of the CRPD calls on member states to do the following:
    • “reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law”;
    • “recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”;
    • “provide access by persons with disabilities to the support they may require in exercising their legal capacity”;
    • “provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law.” These safeguards must ensure that laws related to decision making:
      • “respect the rights, will and preferences of the person”;
      • “are free of conflict of interest and undue influence”;
      • “are proportional and tailored to the person’s circumstances”;
      • “apply for the shortest time possible,” and;
      • “are subject to regular review by a competent, independent and impartial authority.”
    • Finally, states must “ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit.” Countries must also “ensure that persons with disabilities are not arbitrarily deprived of their property.” Check out our webcast from November 2, 2018 to learn more.
  • Canada ratified the CRPD in 2010, but added a reservation to subsection 4 of article 12: “Canada reserves the right to continue [the use of substitute decision-making arrangements] in appropriate circumstances and subject to appropriate and effective safeguards.”
  • Canada also “reserves the right not to subject all such measures to regular review by an independent authority, where such measures are already subject to review or appeal.” Ms. Devandas strongly encouraged Canada to withdraw the reservation “and speed up the process to eliminate all forms of substitute decision-making across the country.”
  • Each province has its own approach to guardianship and legal capacity, McGill University’s Centre for Human Rights and Legal Pluralism summarized them in a submission to the United Nations Committee on the Rights of Persons with Disabilities:
    • Manitoba’s law recognizing supported decision-making only applies to people with cognitive disabilities – it does not include psychiatric conditions.
    • British Columbia’s law allows a representative to “act as a bridge” between the disabled person and any third parties dealing with “health care, personal care, legal affairs, [and] financial affairs.” As a safeguard, financial decisions must involve a monitor or at least two representatives.
    • Alberta’s law only covers supported decision making related to personal affairs, rather than property.
    • Québec has two types of guardianship:
      • A tutor legally represents someone who “partially or temporarily” lacks capacity. The tutor does not need to represent the person at all times – it is possible for the person to make some decisions with no involvement, or assistance, from the tutor.
      • A curator represents someone who lacks capacity permanently, in all areas of life.
      • Tutors and curators can look after the person’s daily affairs, their property, or both. Tutors must “preserve and maintain … the person’s home and furnishings.”
      • The tutor or curator must approve any proposed medical treatment on the person’s behalf, making sure that the treatment “will benefit the person…is appropriate [given their] circumstances,” and that any risks are proportionate to potential benefits.
      • The tutor or curator must also represent the person in any legal action.
      • A tutorship council made up of three relatives or friends supervises and helps the tutor or curator, including outlining what the tutor is authorized to do for the person in their care. The council can also ask provincial courts to replace a tutor who is not fulfilling their responsibilities.
    • Ontario has three laws related to decision making:
      • The Substitute Decisions Act deals with property management, personal care, guardians and powers of attorney. Under this law, capacity is linked to cognitive abilities – either you have it, or you don’t – rather than capacity being recognized as inherent in all people.  Therefore, people whose conditions cause changes in their decision-making abilities are not accommodated. Nothing prevents a person’s capacity from being called into question under this Act just because they have a disability.
      • The Health Care Consent Act deals with consent to medical treatment and admission to long-term care homes.
      • The Mental Health Act concerns a person’s ability to manage property when entering or leaving a psychiatric institution.
  • Guardianship can be a life-or-death matter.  The events surrounding the 2005 death of Terri Schiavo flowed directly from a conflict between her husband, who had guardianship over Terri, and her family, who believed that, as a disabled person, she had a right to life-sustaining treatment.
  • Questions surrounding supported decision making when a person is suicidal or asks for AS/E have received little attention.
    • What is the relationship between the dignity of risk and a person’s desire to intentionally harm themselves?
    • What if the person’s desire for AS/E is a symptom of the impairment that limits their decision-making ability?
    • If the person is subject to a substituted decision-making system, the very fact of being under guardianship may automatically make them ineligible for AS/E; is this a good thing?
    • What safeguards will ensure that the party who “helps” make the decision values the disabled person’s life enough to pursue suicide prevention or other alternatives to AS/E?

CADOTTE SENTENCED TO TWO YEARS FOR MANSLAUGHTER

  • Michel Cadotte, who was convicted of involuntary manslaughter in the suffocation death of his wife Jocelyne Lizotte in February of 2017, was sentenced this week to two years in prison, and three years’ probation.
  • The judge in the case called Cadotte’s actions a “quasi-murder” since he intended to kill his wife, even if his state of mind was affected.
  • Meanwhile a soon-to-be-released “expert” report is expected to recommend that Québec allow euthanasia by advance directive, even if the person is unable to verify that they still want to die when the time comes to be killed.
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