RETHINKING THE ADULT GUARDIANSHIP RESPONSE: MENTAL CAPACITY AND VULNERABILITY IN THE CONTEXT OF DEMENTIA IN OLD AGE by Margaret Isabel Hall A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Interdisciplinary Studies) [Law/Medicine] THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) AUGUST 2018 © Margaret Isabel Hall, 2018 ii The following individuals certify that they have read, and recommend to the Faculty of Graduate and Postdoctoral Studies for acceptance, the dissertation entitled: Rethinking the adult guardianship response: mental capacity and vulnerability in the context of dementia in old age submitted by Margaret Isabel Hall in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Interdisciplinary Studies Examining Committee: Mary Anne Bobinski, Law Supervisor Isabel Grant, Law Supervisory Committee Member Martha Donnelly, Medicine Supervisory Committee Member Barbara Purves, Medicine University Examiner Alison Phinney, Nursing University Examiner Tim Stainton, Social Work University Examiner iii Abstract The current discourse around supported decision making and the Convention on the Rights of persons With Disabilities has challenged medico-legal guardianship and the mental capacity construct at its conceptual core, re-conceptualising decision-making as a skill which can be developed and/or enabled through practice and support. Two major gaps in the supported decision making paradigm have precluded a true paradigm shift, however: a failure to consider the needs of persons unable to express will or preference of any kind in relation to day to day tasks, and a failure to consider exploitation through the high-jacking of mere choices (i.e. non-genuine decisions) by others. The phenomenological nature of dementia intersects with the distinctive relationship and social contexts of old age to make these gaps especially meaningful in the context of dementia in old age. While a guardianship model that includes substitute decision-making would fill these gaps, the theoretical and practical problems associated with the current medico-legal guardianship model must be addressed. Using the methodology of pragmatic inquiry, this study proposes re-thinking adult guardianship as a response to vulnerability (the impaired performance of thinking processes in connection with an individual’s social, relationship and material contexts), and sets out a preliminary guardianship model constructed on that basis. iv Lay Summary Supported decision-making does not provide a complete replacement for guardianship, particularly in the context of dementia in old age. The current medico-legal guardianship model (structured and justified by the mental capacity construct described in this research study) is also problematic in this context. This research study proposes rethinking adult guardianship as one response to vulnerability, where increased vulnerability arising from a person’s impaired performance of thinking processes is not absorbed or is exacerbated by that person’s social, material and relationship contexts. Rethinking guardianship as a response to vulnerability is consistent with, and justified by, principles and policy considerations embedded in the doctrines of common law and equity. This study concludes by setting out a (preliminary) vulnerability-based guardianship model, including a framework for assessing vulnerability. v Preface This dissertation is original, unpublished work by the author, Margaret I. Hall. The empirical research carried out in connection with this research study (described and reported in Chapters 5-6) was covered by UBC Behavioural Research Ethics Board Certificate of Approval #H12-03209 (Project Title “The Mental Capacity Construct as a Basis for Guardianship Interventions Involving Older Adults: Pragmatic Inquiry and Policy Implications”). vi Table of Contents Abstract…………………………………………………………………………………...............iii Lay Summary…………………………………………………………...…………….…….....…iv Preface……………………………………………………………………………………............v Table of Contents…………………………………………………………………………………vi List of Tables………………………………………………………………………………….…..x Acknowledgements..…………………………………………………………………….……..xi Dedication ………………………………………………………………………………..…….xii Chapter 1. Introduction……………………………………………………………….…………...1 1.1 Subject of this research: rethinking adult guardianship in the context of dementia in old age………………...1 1.2 Guiding questions and purpose of this research study……………………………………………………….....8 1.3 Over-view and structure of this research study………………………………………………………………...9 1.4 Conclusions: rethinking adult guardianship as a response to vulnerability…………………………………...12 Chapter 2. Adult Guardianship in Current and Historical Context: From the Law of the Manor to the Convention on the Rights of Persons With Disabilities…………………………………….…15 2.1 Introduction……………………………………………………………………………………………........…15 2.2 Adult guardianship: current Canadian law………………………………………………………...………..…15 2.2.1 Adult guardianship legislation…………………………………………………………………………16 2.2.2 Scope of guardianship authority…………………………………………………………………….…19 2.3 From the law of the manor to supported decision-making and the Convention on the Rights of Persons With Disabilities: the history of guardianship in Anglo-Canadian law……………………………………….......21 2.3.1 Introduction……………………………………………………………………………………………21 2.3.2 Lost in the mists of time: the emergence of adult guardianship in Anglo-Canadian law…………….…21 2.3.3 Private guardianship and the emergence of substitute decision-making…………………………….…25 2.4 Emergence of the modern law: from the Imperial Lunacy Act to the Patients Property Act………………..…27 2.5 Mental capacity, decision-making, and the reform movement in adult guardianship……………………….…30 2.6 The supported decision making paradigm and Article 12 of the Convention on the Rights of Persons with Disabilities ……………………………………………………….…………………………………………...39 2.7 Dementia………………………………………………………………………………………………………48 2.8 Conclusions……………………………………………………………………………………………………53 vii Chapter 3. Research Methodology: Pragmatic Inquiry and the Epistemology of Philosophical Pragmatism…………………………………………………………………………………..…..54 3.1 Introduction……………………………………………………………………………...…………………….54 3.2 Epistemology and methodology: pragmatism and pragmatic inquiry………………………………….….….54 3.2.1 Philosophical pragmatism: the classic American pragmatists…………………………………..……55 3.2.2 Philosophical pragmatism: anti-essentialism and the nature of truth……………………………...56 3.2.3 Truth, doubt, and the methodology of pragmatic inquiry……………………………………………60 3.3 Pragmatism in law……………………………………………………………………………………………61 3.3.1 Law as experience: the legal pragmatism of Oliver Wendell Holmes…………………………...…...61 3.3.2 Legal pragmatism after Holmes: legal realism, brass tacks, and inclusive pragmatism………..…..64 3.4 Pragmatism, bio-ethics and health law……………………………………………………………………...…68 3.5 Research structure and design……………………………………………………………………………...…70 Chapter 4. Theoretical Inquiry (Pragmatic Inquiry Phase 1): Mental Capacity, Vulnerability, and Guardianship for the Old……………………………………………………………………..…..75 4.1 Introduction……………………………………………………………………………………………………75 4.2 The mental capacity construct: law, autonomy, and the bio-medical self………………………………......76 4.2.1 The mental capacity construct………………………………………………………………………...77 4.2.2 Autonomy and the mental capacity construct………………………………………………………....78 4.2.3 Autonomy problems in legal context…………………………………………………………………...80 4.3 Mental capacity in legal context…………………………………………………………………………….…82 4.3.1 Agreements, bequests, transactions………………………………………………………………….…83 4.3.2 Health care decision-making……………………………………………………………………………87 4.3.3 Advance planning………………………………………………………………………………………91 4.3.4 Adult guardianship………………………………………………………………………………….…..93 4.3.5 Conclusions……………………………………………………………………………………….……97 4.4 Mental capacity, adult guardianship, and dementia in old age: troubles and implications.....98 4.4.1 Mental capacity, adult guardianship, and dementia in old age……………………….98 4.4.2 Troubles and implications: relationship context, accumulation of resources, and the former capable self……………………………………………………..……………………………………………………100 18.104.22.168 Relationship context……………………………………………………………………….101 22.214.171.124 Accumulation of assets in the context of social ageism……………………………………..102 126.96.36.199 Guardianship and the former capable self………………………………………………….105 188.8.131.52 Loss of capacity: dementia and the former capable self…………………………………....106 4.4.3 Conclusions……………………………………………..…………………………………………..108 viii 4.5 After capacity: vulnerability theory……………………………………………………………………….….109 4.5.1 But what does it mean? Defining vulnerability ………………………….…………………………..109 4.5.2 Assessment and the development of meaning: functional capacity, relational capacity and “Liberty for the Old”………………………………………………………………………………………………………114 4.5.2 Vulnerability theory in the adult guardianship context: a preliminary model…………………....119 4.6 Conclusions……………………………………………………..……………………………………….……121 Chapter 5. Empirical Inquiry (Pragmatic Inquiry Phase 2): Research Structure and Design…....123 5.1 Introduction……………………………………………………..…………………………………………...123 5.2 Empirical research: structure and design……………………………………………………………………..124 5.3 Participants and research settings……………………………………………………………………………..125 5.3.1 Limitations……………………………………………………………………………...……………...125 5.3.2 Set A (retired judges):inclusion criteria, recruitment and interview setting………………………….128 5.3.3 Set B (health team members): inclusion criteria, recruitment, and interview setting ………………. .130 5.4 Professional identity, cultural homogeneity, and saturation…………………….....................……………. 135 5.5 Interview procedure…………………………………………………………………………………………..135 5.6 Research structure and design: limitations and validity………………………………………………………139 5.7 Research method: applied thematic analysis as a method of pragmatic inquiry…………………….……141 5.7.1 Research method: applied thematic analysis…………………………………………………..…..142 5.7.2 Identifying themes……………………………………………………………………………………144 Chapter 6. Pragmatic Inquiry Phase 2: Empirical Inquiry…………………………………….....146 6.1 Set A themes: retired judges……………………………………………………………………………..……146 6.2 Set B themes: health professionals………………………………………………………………………….162 6.3 Overarching Themes……………………………………………………………………………………....….194 6.3.1 Overarching themes: Set A……………………………………………………………………….…..194 6.3.2 Overarching themes: Set B………………………………………………………………………..…..196 6.4 Conclusions………………………………………………………………………………………………....199 Chapter 7. Judgment and Conclusions: Rethinking the Adult Guardianship Response……...…201 7.1 Introduction……………………………………………………………..….. ………………………………201 7.2 Phase 3: Judgment…………………………………………………………………………………............. 207 7.2.1 Medico-legal guardianship and the mental capacity construct………………………………………207 7.2.2 Mental capacity in the context of old age……………………………………………………………210 7.2.3 Summary and conclusions: mental capacity…………………………………………………………213 7.2.4 Vulnerability: theoretical framework and preliminary model……………………………………….217 184.108.40.206 Vulnerability: the theoretical framework……………………………………………………218 ix 220.127.116.11 Adult guardianship as a response to vulnerability: framework for a preliminary model……220 7.3 Conclusions………………………………………………………………………………………………….229 Bi b l i o g r ap h y … … … … … … … … … … … … … … … … … … … … . . … … … … … … … . . … … … 2 3 6 x List of Tables Table 1: Set A Participants (Supreme Court Judges)…………………………………………131 Table 2: Set B Participants (Health Professionals)…………………………………………….135 Table 3: Set A Participants (Supreme Court Judges)…………………………………………..148 Table 4: Set B Participants (Health Professionals)…………………………………………….164 xi Acknowledgements I would like to acknowledge and thank the members of my supervisory committee for bearing with me throughout my intellectual journey, for their insights and thoughtfulness, and for keeping me on the path. With the greatest respect and affection: thank you, to Professor Mary Anne Bobinski, Dr. Martha Donnelly, and Professor Isabel Grant. I take full responsibility for the ideas expressed in this dissertation, which are entirely my own, xii Dedication For my mother, Marguerite Frost, and my father, William F. HallChapter 1 1 Chapter 1. Introduction The first part of this introductory Chapter describes the subject of this research, and sets out the purpose and research questions guiding this research study. An over-view of the following Chapters in this research study is then provided. The Chapter concludes with an explanation of the way in which the concept of vulnerability is understood and used in this research study. 1.1 Subject of this research: rethinking adult guardianship in the context of dementia in old age The law is never concerned with the thought processes of individuals per se. Legal response is limited to situations where an individual’s performance of thinking processes (judging, comprehending, remembering) creates problems, for the person and/or for others, that are recognised as justifying legal intervention. Several areas of the civil (non-criminal) law are concerned, for different reasons, with the problematic performance of thinking processes; these include adult guardianship and mental health legislation, legislation enabling advanced planning instruments of different kinds, and doctrines of law and equity relating to agreements and bequests. In each case, the law’s concern and intervention must be justified. That justification is rooted partly in public policy (where a problem is understood to engage the public interest), partly in legal principle, and partly in the dominant cultural paradigm of a particular time and place. A justification may become more or less valid, therefore, as policies, principles and paradigms change over time. The late 20th century ascendancy of autonomy as a legal principle has meant that all laws relating to the performance of thinking processes must be justified in terms that include the recognition/protection of individual autonomy. This has not always been the case. From the feudal law of the manor to the modern medico-legal guardianship model, adult guardianship (as one legal response to the problematic performance of thinking processes) has taken several forms and been justified on a number of bases in Anglo-Canadian law. The essential mechanism of guardianship has remained constant, however: the authorisation of one person to act/make decisions on behalf of another. The justification for adult guardianship has changed more significantly over the course of this history. Guardianship was justified in the feudal system by the imperative of ensuring that the obligations owed by a subject to the Lord Chapter 1 2 were carried out. If the subject was incapable of carrying out those obligations for reasons relating to his performance of thinking processes, guardianship provided a mechanism through which those obligations could be met. The doctrine of parens patriae, arising in the middle ages, provided the justification for guardianship until the introduction of adult guardianship legislation in the late 19th/early 20th centuries. Parens patriae conceptualised the relationship between the Crown (later the state) and “lunatics” as one in which an obligation to protect was owed by the Crown/state to an individual who was incapable of protecting him or herself. Until the guardianship reforms of the late 20th century, adult guardianship legislation implicitly rested on a parens-like justification. The old category of “lunatics” (having absorbed the even older category of “idiot”) was replaced by new categories based on medical status (mentally infirmity or disorder, for example) but the justification remained the same: the state’s parent-like responsibility to protect persons who, by reason of their performance of thinking processes, could not protect themselves. The protection-based justification for adult guardianship began to lose validity in the latter decades of the 20th century with the ascendancy of autonomy as a pre-eminent legal principle, increasing respect for diversity and human rights, and the incorporation of social disability theory within equality jurisprudence. These theoretical developments were accompanied by increasing public awareness of the ways in which protection-based authority over others could be (and often was) abused. In accordance with these broader social developments, the adult guardianship reform movement sought to re-construct guardianship as a mechanism for protecting and maximising individual autonomy. The medico-legal guardianship model that emerged from the reform movement conceptualised guardianship as a response to decision-specific mental capacity impairment1 as opposed to a need for protection and management arising from a generalised inability to fend for one’s self. The guardian became a “decision-maker” (rather than a protector). As a substitute decision-maker, the guardian’s role was to implement those decisions the individual would have made if capable of doing so (as opposed to 1 Mental capacity, referring to the cognitive ability to carry out the mental process of decision-making, is used in this study as synonymous with “decision-making ability.” The word “capacity” is used in this study as synonymous and interchangeable with “capability” and “competence.” This is consistent with both general or everyday usage and legal usage, and is adopted for that reason, although a distinction is sometimes drawn between mental capacity as a clinical assessment and competence as a legal determination: see e.g. Alec Buchanan, “Mental Capacity, Legal Competence and Consent to Treatment” (2004) 97:9 J Royal Society of Medicine 415 at 415. Chapter 1 3 making decisions the guardian felt were in the person’s best interests), effectively extending autonomous decision-making after the independent exercise of that autonomy was no longer possible. Some jurisdictions also provided for an assisting and/or supporting decision-maker to enable the person’s direct autonomous decision-making where possible. The idea that mental capacity can be accurately, objectively, and precisely measured is integral to the coherence of the medico-legal guardianship model. Limiting guardianship to specific categories of decisions (more specific than the traditional management categories of property and person), and distinguishing between persons capable of making decisions with support and those incapable of doing so, requires the ability to identify and delineate between finer grades of cognitive decision-making processes. By removing subjective or value-based judgment from the assessment process, the scientific/objective measurement of mental capacity is also essential to the validity of adult guardianship as a means of protecting autonomy; theoretically, scientific assessment would prevent unconventional behaviour from being mislabeled as evidence of impaired capacity. The role of the court in the medico-legal model is limited to ensuring that evidence of decision-making is sufficiently objective and value-neutral, and determining whether suitable arrangements for managing the person’s impaired capacity are in place (choosing between rival would-be guardians, for example). The supported decision making paradigm, in contrast, has rejected substitute decision-making (and therefore adult guardianship itself) as fundamentally unjustifiable, either on the basis of a parens like protection principle or on the basis of autonomy (the medico-legal guardianship model described above). At the core of the supported decision-making paradigm is a re-conceptualisation of decision-making itself as a skill, developed through practice and support, rather than a bio-mechanical characteristic of brain function. The medico-legal guardianship question (is person X capable of making decision Y) is, on this basis, wrong in theory and discriminatory in effect. Person X is always capable of making decision Y, with appropriate support; the right question is, what support does X need to make her own decision? By explaining persons as always capable of decision-making the supported decision-making paradigm under-mines the justification for medico-legal guardianship and removes the need for any alternative justification (because support ≠ legal intervention and autonomy interference, no Chapter 1 4 justification for that interference is required). 2 Incorporating the core tenets of social disability theory, the supported decision-making paradigm characterises differential legal treatment on the basis of impaired mental capacity as both discriminatory and autonomy-impairing, actively preventing the person from developing her own decision-making ability by empowering another to make decisions on her behalf (in the same way that one who is always cooked for will never learn to cook). On the terms of this analysis, reforms to guardianship (limiting the scope of guardianship authority to certain kinds of decisions e.g.) do not change the essentially discriminatory and autonomy-impairing nature of guardianship per se. The assessment of mental capacity for the purpose of appointing even an assisting or supporting decision-maker is characterised as discriminatory in and of itself. This emerging new paradigm3 (which would replace the medico-legal guardianship model) must be distinguished from guardianship legislation providing for supported and/or assisted decision-making as an alternative to substitute decision-making on a guardianship continuum, with the choice of alternative depending on the assessment of that person’s mental capacity (or “decision-making ability”). At the conceptual core of the supported decision-making paradigm is a rejection of the mental capacity assessment itself, however carried out, as the basis for appointing any kind of decision-maker. The “dis-ability” of “impaired decision-making” can be resolved, instead, through creation of and access to adequate supports, in the same way that disability arising from physical differences can be resolved through modifications to the built environment. This idea of mental in/capacity as socially constructed is of-a-piece with social disability theory, as incorporated within equality jurisprudence (as discussed in Chapter 2). The supported decision-making paradigm has also been deeply informed by its connection to the community living movement and, in particular, the identification of specific practical problems caused by medico-legal guardianship and substitute decision-making for persons with developmental and intellectual disabilities.4 These problems include the discriminatory de facto 2 The United Nations Committee on the Rights of Persons With Disabilities (within the Office of the High Commissioner on Human Rights), General Comment No. 1 (interpreting Article 12 of the Convention on the Rights of Persons With Disabilities), discussed in detail in Chapter 2, infra, , also casts doubt on the idea of mental capacity as a medically meaningful idea. 3 Thomas Kuhn, in his seminal work, The Structure of Scientific Revolutions, defined a paradigm as a comprehensive model of understanding within a field of practice. See Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962). 4 Writing in 2000, Robert Gordon noted the strong role played by organisations representing the interests of persons with mental (intellectual) disabilities (notably the national and provincial associations for community living) in the Chapter 1 5 identification of intellectual/developmental disability itself as equal to impaired decision-making capacity;5 the illusion of “substitute” decision making for persons never considered capable of decision making (making the guardian a replacement and not a substitute decision-maker);6 guardianship as an enforced, perpetual childhood precluding the development of autonomy, decision-making skills and psychological well-being; and the devastation caused by the death of parent-guardians for persons who have been deprived of the opportunity to develop those skills.7 The development of the supported decision-making paradigm as a response to these specific problems is discussed further in Chapter 2. The supported decision-making paradigm remains what Thomas Kuhn described as an “emergent paradigm” in the period of “paradigm revolution” that precedes a true paradigm shift, .i.e. the adoption of a new master conceptual rule through which problems are identified and plausible solutions to those problems are understood or framed.8 Paradigms gain dominant status, according to Kuhn, “because they are more successful than their competitors in solving a few problems that the group of practitioners has come to recognize as acute."9 Eventually, recurring problems arise within a field that resist resolution through the rules of the dominant paradigm, despite repeated efforts to make the problems fit the frame (efforts which may result in short-term apparent resolutions). So long as these stubborn problems remain visible, persistent failure eventually leads to the emergence of alternative theoretical frameworks during a creative period that Kuhn called a model revolution. A paradigm shift takes place when one of these alternatives development of supported decision-making and the relative exclusion of “the elderly” who had been the “driving force” behind the guardianship reforms of the 1970s and 1980s. These developments are discussed further in Chapter 2.. See Robert Gordon, “The Emergence of Assisted (Supported) Decision-Making in the Canadian Law of Adult Guardianship and Substitute Decision-Making” (2000) 23:1 Intl J L & Psychiatry 61 at 72. 5 Even where guardianship legislation calls for a “decision-specific” capacity assessment. 6 See Louise Harmon, “Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment” (1990) 100:1 Yale LJ 1. 7 Nina A Kohn, Jeremy A Blumenthal & Amy T Campbell, “Supported Decision-Making: A Viable Alternative to Guardianship” (2013) 117:4 Penn St L Rev 1111 at 1113, 1117-120. See also, Kristin Booth Glen, “Changing Paradigms: Mental Capacity, Legal Capacity Guardianship, and Beyond” (2012) 44:1 Colum HRLR 93; Harmon, supra note 8; Law Commission of Ontario, A New Paradigm for Protecting Autonomy and the Right to Legal Capacity, by Michael Bach & Lana Kerzner (Ontario: Law Commission of Ontario, October 2010) online: <http://www.lco-cdo.org/disabilities/bach-kerzner.pdf>. 8 See, PM Strong, The Ceremonial Order of the Clinic: Parents, Doctors and Medical Bureaucracies (London: Routledge & Kegan Paul, 1979); Robert Dingwall, John Eekelaar & Topsy Murray, The Protection of Children: State Intervention in Family Life (Oxford: Basil Blackwell, 1983); Diane Vaughn described this kind of framing as “a way of seeing that is simultaneously a way of not seeing.” See Diane Vaughn, The Challenger Launch Decision: Risky Technology, Culture, and Deviance at NASA (Chicago: University of Chicago Press, 1997) at 394. 9 Kuhn, supra note 5 at 23. Chapter 1 6 defeats the others to become the dominant paradigm in the field. If an existing dominant paradigm simply absorbs or is altered by a new model the result is what Kuhn calls “normal science” (ie. incremental development of an existing paradigm) and not a paradigm shift. Applying Kuhn’s terminology, legislation in several Canadian provinces providing for a guardianship continuum (with the kind of decision-maker appointed depending on the person’s level/degree of decision-making ability) is “normal science” of this kind rather than a true paradigm shift,10 a further iteration of guardianship reform requiring the production and implementation of increasingly precise assessment tools to measure and separate out decision-making capabilities: is X capable of making decision-type A with support? Not capable of making decision-type B (and in need of a substitute decision maker)? Canada’s ratification of the Convention on the Rights of Persons with Disabilities with a reservation allowing for substitute decision making is a tacit endorsement of the continuum approach i.e. the co-existence of supported and substitute decision making within a medico-legal model. I suggest that a true paradigm shift in favour of the supported decision-making paradigm has been precluded by two major gaps: the failure to recognise/respond to the needs of persons who are unable to express choice of any kind (the person in a coma, to use the most extreme example), and the failure to recognise and respond to the high-jacking of mere/non-genuine11 choices by others for the purpose of exploitation. The term “mere choice” is used here to describe choices that are distorted by problems in the individual’s performance of thought processes (choices can be distorted in this way by delusions, an inability to understand or comprehend, or where judgment is impaired). Both problems are particularly pertinent in the context of dementia in old age- the context in which guardianship is most commonly used, by a considerable margin. The nature of dementia as a progressive disorder, experienced in connection with increasing physical frailty and the progress of underlying diseases such as Alzheimer’s, entails a declining ability to make decisions and to perform other kinds of thinking processes (judging, comprehending, remembering) culminating in an inability to effect choice of any kind. As dementia progresses, a person’s ability to care for themselves or carry out the 10 See, Kohn, Blumenthal & Campbell, supra note 9. 11 In the sense that genuine decisions have been understood and explained through doctrines of common law and equity, as discussed further in Chapter 4. Chapter 1 7 activities of daily life will generally decrease together with the person’s ability to perceive the implications of those changes. The early stages of dementia, on the other hand, are often characterised by distortions in judgment at a time when the individual retains the ability to effect or carry out mere choices. At the same time, the distinctive social and relationship contexts of old age (described in Chapters 4 and 6) make it more likely that these mere choices will be manipulated and exploited by others. Substitute decision-making responds to these problems by providing a mechanism through which decisions can be made and mere choices over-ridden, and the survival of medico-legal guardianship (despite sustained and significant critique) can be attributed to its ability to fill these gaps. Medico-legal guardianship is not validated by the gaps in the supported decision-making paradigm, however, and the problems identified by its critics remain. The supported decision-making critique has explained the ways in which medico-legal guardianship has been a source of problems for persons with developmental disabilities. As examined and discussed in this research study, medico-legal guardianship also gives rise to special problems the context of dementia in old age. In sum, a role remains for adult guardianship, but medico-legal guardianship can no longer be justified in its present form. The objective of this research is to determine whether the problems associated with medico-legal guardianship can be resolved through “normal science” (a next phase of guardianship reform), whether a more radical re-conceptualisation is warranted and, if so, to identify the basis for a new adult guardianship paradigm. This study has been carried out with a focus on the distinctive problems arising in the context of dementia in old age, as the context in which guardianship is most likely to be used in response to the supported decision-making gaps identified above. Guardianship is not an abstraction, but something that happens to people, and an evaluation of adult guardianship must be grounded in context rather than a diffuse abstract category of “persons with impaired decision-making ability”. The questions guiding this research, and the methodology of pragmatic inquiry through which those questions have been examined, are intended to provide this kind of contextualised approach. Chapter 1 8 1.2 Guiding questions and purpose of this research study The purpose of this research study is to construct a model of adult guardianship that addresses the problems associated with medico-legal guardianship while filling the gaps in the supported decision-making paradigm. The success/validity of that model depends on a coherent theoretical justification (rooted in policy, principle, and authoritative cultural paradigms) and on the feasibility of effective practical implementation. The methodology of pragmatic inquiry used in this research (as discussed in Chapter 3) provides for an examination/analysis of both of these elements. Consistent with this purpose and methodology, this research study has been guided by two over-arching research questions: 1. Whether and to what extent the current medico-legal guardianship model, as structured by the mental capacity construct, provides an adequate and effective response to problems arising from the chronic and progressive changes in thinking processes that are associated with dementia in old age (taking into account the often ambiguous relationship between “normal aging” and the signs and symptoms of dementia). The effectiveness of that response also requires theoretical coherence and justification in terms of legal principles. In particular: To what extent is the mental capacity construct coherent as an “organizing idea” (in the pragmatist sense) for guardianship in the context of dementia in old age? To what extent is the mental capacity construct capable of consistent enactment by medical and legal actors (involved in the processes of guardianship) in the context of dementia in old age? To the extent that it is not, what specific problems or difficulties are generated by this lack of coherence/workability? 2. Whether an alternative guardianship model based on and structured by an underlying/framing theory of vulnerability can provide a more complete and effective response to problems arising from the chronic and progressive changes in thinking processes associated with dementia in old age, and if so how that response be can justified on the basis of legal principles. In particular: Chapter 1 9 Can vulnerability provide a more coherent and workable “organizing idea” (in terms of both theoretical coherence and potential for consistent implementation) for adult guardianship, especially in relation to dementia in old age? What would a coherent/workable theory of vulnerability in this context look like?. 1.3 Over-view and structure of this research study This research study is divided into four parts. The first part (Chapter 2) provides an historical account of adult guardianship from its pre-common law origins in the law of the manor to medico-legal guardianship, adult guardianship reform, supported decision making and the Convention on the Rights of Persons With Disabilities. Throughout this period, the guardianship response has been and remains concerned with the perceived needs of persons whose performance of the processes of thinking- remembering, judging, comprehending, communicating, etc.- create difficulties in terms of coping with the world. The perception of those needs, together with the structures developed to meet them, have necessarily evolved in connection with their historical place and time in a way that “fits” and is compatible with that broader context. Understanding adult guardianship as an idea that is plastic and evolving in this sense provides a theoretical foundation for the examination of guardianship in the following chapters. This understanding and approach is also fundamental to the epistemology and methodology of pragmatic philosophy used in this research study (as discussed in Chapter 3). Chapter 2 concludes with an over-view of dementia as a historically located physiological phenomenon, including a summary of the ways in which dementia has been explained and understood from antiquity to the present. The second part of this study (Chapter 3) describes the methodology used in this research study and the epistemology underlying that methodology. The methodology of pragmatic inquiry, as articulated and practised by the pragmatist philosopher John Dewey, seeks to resolve “doubt” about the validity of a “situation” (the term used by Dewey to describe a field of practice as that field is organized by a particular idea). The validity of a situation depends on the general acceptance of its organizing idea as true; a situation becomes de-stabilised, and increasingly untenable, where doubt arises about the truth of that idea. Doubt may arise where repeating problems within the field cannot be resolved, or where the broader context in which the field is Chapter 1 10 situated changes in ways that “jar” with the organizing idea. Pragmatic inquiry is a response to that doubt, requiring the systematic examination of an idea as it works to organise a particular field of practice and, on the basis of that examination, an assessment of its validity. The objective of pragmatic inquiry is to resolve doubt, either through revising the idea under inquiry or by proposing a more valid alternative that resolves the problem/s giving rise to doubt in a way that is consistent with other social truths. Pragmatic inquiry is rooted in the epistemology of the philosophical pragmatism of James and Dewey (as opposed to the legal pragmatism associated with Oliver Wendell Holmes and the “brass tacks” legal realists). Philosophical pragmatism rejects what Dewey called a “spectator theory of knowledge” in which the individual, standing outside of the world, comes to know that world and its essential reality through a process of passive surveillance.12 For the pragmatist philosophers “[t]ruth happens to an idea, it becomes true, it is made true by events”13 and ideas become true (or cease to be true) to the extent that they “remov[e] some specific trouble and perplexity.”14 To become true in this way an idea must work or fit together with other truths to form a coherent conceptual framework, “so as ever to show a minimum of jolt, a maximum of continuity.”15 Pragmatist epistemology and the methodology of pragmatic inquiry provide a very useful way of thinking about how medico-legal guardianship has been structured by the mental capacity construct, the doubt that has arisen about the validity of medico-legal guardianship, and the necessity of re-thinking the theoretical basis of the adult guardianship (as a 12 John Dewey, The Quest for Certainty (New York: Capricorn, 1960) at 193-194, cited in Cornel West, The American Evasion of Philosophy: A Genealogy of Pragmatism (Madison: University of Wisconsin Press, 1989) (“[t]heories which assume that the knowing subject, that mind or consciousness, have an inherent capacity to disclose reality, a capacity operating apart from any overt interactions of the organism with surrounding conditions, are invitations to general philosophical doubt.” at 90). 13 William James, Pragmatism (Cambridge: Harvard University Press, 1975) at 35, cited in C. West, Ibid., at 65. Dewey coined the term “warranted assertibility” as a preferable, more accurate alternative to “truth” and “knowledge”; Larry Hickam has described this “cumbersome but descriptive phrase” as “pointing in two directions”: “Warranted” points backwards in time toward something that has been accomplished. What is warranted is the result of reflection that has been effective in the sense that some specific doubt or difficulty has been resolved. “Assertibility” points forward in time towards something yet to be done. What is assertible is something general, and therefore something potentially applicable to future cases that are relevantly similar to the one by means of which it was produced. Unlike the alleged knowledge… studies by most epistemologists… warranted assertibility is claimed to be neither certain not permanent. The best it can offer is a measure of stability in an otherwise precarious world.” Larry A Hickman, Pragmatism as Post-Modernism: Lessons from Dewey (New York: Fordham University Press, 2007) at 207. 14 John Dewey, Reconstruction in Philosophy (Boston: Beacon Press, 1948) at 156. 15 Ibid. Chapter 1 11 field of practice) in order to resolve that doubt. The use of traditional philosophical pragmatic inquiry as a legal research methodology is a distinct and, I think, important contribution made by this research study. As described in detail in Chapter 3, the methodology of pragmatic inquiry consists of three research phases. The first phase is a theoretical examination and analysis of the organizing idea in the doubtful situation under examination, followed by the proposal of an alternative organizing idea that would remove the doubt identified. The second phase of pragmatic inquiry involves a practical testing of those ideas (the current organizing idea and the alternative proposed) in the field under inquiry. The objective or outcome of pragmatic inquiry is the reorganisation of the field of practice in a way that would resolve the doubt giving rise to the inquiry. The first and second phases of pragmatic inquiry are set out in the third part of this research study (Chapters 4, 5 and 6). Judgment between these two ideas (in terms of organizing the field of practice) is the third phase (set out in Chapter 7). Chapter 4 provides a theoretical examination and analysis of the mental capacity construct in a number of legal contexts, including adult guardianship, and identifies the special problems arising from medico-legal guardianship (as organized by the mental capacity construct) in the context of dementia in old age. Chapter 4 concludes by setting out a preliminary theory of vulnerability as an alternative organizing idea in the field of adult guardianship. The vulnerability theory described in Chapter 4 defines vulnerability as arising through the intersection of the self, involving the problematic performance of thinking processes, with the individual’s relationship and social context. This idea of vulnerability is rooted in long-standing principles of equity and the common law. The vulnerability theory proposed in Chapter 4 also resonates with alternative theories of mental capacity developed outside of legal discourse and/or through inter-disciplinary collaboration which, despite their formal identification in terms of mental capacity (as required by the current legislative framework), are more coherently understood as descriptions/explanations of vulnerability. The second phase of pragmatic inquiry (described in Chapters 5 and 6) involved empirical research carried out for the purpose of examining the mental capacity construct (as the current organizing idea in adult guardianship) and the theory of vulnerability described in Chapter 4 in Chapter 1 12 the field of practice i.e. as both ideas are understood and used by legal and medical actors involved in the implementation of adult guardianship. Chapter 5 describes the structure of the empirical research phase, which involved the collection of data through semi-structured interviews carried out with two sets of participants (members of interdisciplinary health teams and retired judges) and the research method of applied thematic analysis that was used to identify themes in the data. Chapter 6 sets out the themes identified in both data sets, including an integrated over-arching theme for each set. The third phase of pragmatic inquiry set out in Chapter 7 (Judgment) synthesizes and analyses the findings from phases 1 and 2 and, on the basis of that analysis, answers the research questions posed in this Chapter. A preliminary vulnerability based guardianship model is set out in the latter part of Chapter 7 (responding to the research question, “what would a coherent/workable theory of vulnerability in this context look like?”) I conclude that, on the terms of pragmatic inquiry and the epistemology of philosophical pragmatism, vulnerability has the potential to provide a more successful organizing idea in the field of adult guardianship, filling the gaps in the supported decision-making paradigm while addressing the problems created by the metal capacity construct in the context of dementia in old age. 1.4 Conclusions: re-thinking adult guardianship as a response to vulnerability The theory of vulnerability and vulnerability-based guardianship model developed through this research proceeds from an understanding of vulnerability as universal; there are many vulnerabilities, and we are all vulnerable in some respects. Adult guardianship provides one response to a particular kind of heightened vulnerability arising where problems in the performance of thinking processes intersects with a person’s relationship, social, and material contexts in a way that creates unreasonable risk. 16 Vulnerability can be reduced through a re-calibration of the self/context relationship, either by strengthening the self (through medical treatment or supported decision-making, for example) or by enabling/effecting changes to context (disrupting an exploitative relationship, for example, or providing housing/home supports). Tools enabling context change, including guardianship, are most likely to be useful 16 Describing a degree of vulnerability that is not acceptable as a matter of public policy, resonating with the public interest recognised by the common law of necessity and the doctrines of equitable fraud, as discussed in Chapter 4. Chapter 1 13 where recalibration of the relationship between context and self cannot be effected through treatment or other mechanisms for strengthening the self. The decision to appoint a guardian should therefore be made in connection with a consideration and weighing of those other tools (both legal and non-legal) and not in isolation. The authority guardianship confers to over-ride mere choices makes it particularly useful as a means of disrupting exploitative/abusive relationship context in a situation where self-strengthening tools (medical or social) are not applicable. A purposeful approach to the assessment of vulnerability will therefore include evaluation of a person’s performance of thinking processes (including cognitive testing/assessment and functional assessment) together with an evaluation of relevant contextual factors, and the interaction between context and self. The approach to assessment set out in Chapter 7 builds on the discussion of alternative mental capacity assessment models described at the conclusion of Chapter 4 (which I describe as de facto evaluations of vulnerability despite their framing in terms of capacity or decision-making ability) and the themes arising from the phase 2 empirical research carried out with judges and older adult mental health team members (described in Chapter 6). The continuing, persuasive power of the mental capacity construct (as the basis of medico-legal guardianship), despite the conceptual difficulties described in Chapter 4, is largely due to its usefulness as a way of explaining guardianship in terms that are compatible with the pre-eminent legal principle of autonomy. Any new “organizing idea” or paradigm must also be rooted in, and justified by, legal principle. The new vulnerability-based guardianship paradigm and model constructed through this study is rooted in and justified by the fundamental legal principle of fairness, the public interest in humane development of the law underlying the common law doctrine of necessity, and the public interest in preventing exploitation enshrined in and exercised through the doctrines of equitable fraud. Understanding guardianship as one of a number of legal responses whose purpose is the reduction of vulnerability (as opposed to the protection of vulnerable persons i.e. the parens paradigm) is also compatible with the idea of autonomy as relational, a characteristic that can be developed as well as diminished through relationship with others (as opposed to an innate characteristic of persons which is only diminished by the interference of others) and that waxes Chapter 1 14 and wanes, changing in character, over the life-course.17 The autonomy ideal associated with classic liberalism (and providing the theoretical basis for medico-legal guardianship) - the “self-sufficient, independent… self-reliant, [and] self-realizing individual who directs his efforts toward maximizing his personal gains”18 - is progressively losing validity as a theory of human nature that is not restricted to adult (non-old), non-disabled, unencumbered white males. The current challenges to medico-legal guardianship are, at root, a rejection of this idea of autonomy, which would exclude all persons who are not and cannot be self-reliant. Autonomy for persons standing outside of the liberal autonomy ideal must be conceptualised on different terms, as a way of being that that is dependent on and constructed through relationships, supports, and interventions of different kinds- including, where warranted under the circumstances, adult guardianship. 17 See, Nedelsky, Jennifer. Law’s Relations: A Relational Theory of Self, Autonomy and the Law (Oxford, UK: Oxford University Press, 2011). 18 Lorraine Code, What Can She Know? Feminist Theory and the Construction of Knowledge (Ithaca: Cornell University Press, 1991) at 77. “His is independence is under constant threat from other (equally self-serving) individuals: hence he devises rules to protect himself from intrusion. Talk of rights, rational self-interest, expediency, and efficiency permeates his moral, social, and political discourse.” Ibid., at 77-78. Chapter 2 15 Chapter 2. Adult Guardianship and Dementia in Current and Historical Context: From the Law of the Manor to the Convention on the Rights of Persons With Disabilities 2.1 Introduction The first part of this Chapter provides an over-view of current adult guardianship legislation in Canada. The second part of this Chapter provides an historical over-view of adult guardianship in Anglo-Canadian law, from the feudal manor to the Convention on the Rights of Persons With Disabilities. The third part of this Chapter provides as over-view of dementia, as both a physiological and socially constructed phenomenon, from antiquity to the present. 2.2 Adult guardianship: current Canadian law A “guardian” is defined in the Oxford English Dictionary as “One who guards, protects, or preserves; a keeper, defender; one to whom the care and preservation of any thing is committed.”1 A guardian “in Law” is further defined as “a person who has, or by law is entitled to, the custody of the person or property (or both) of an infant or other person legally incapable of managing his or her own affairs.”2 This simple articulation sets out the basic mechanism of the modern law of adult guardianship, and its parameters: legal guardianship follows a finding of legal “incapability,” and a guardian can only be appointed for a person so found. The purpose and role of the guardian is to “manage” those matters that the person is incapable of managing him or herself. Modern adult guardianship legislation (incorporating the reform model discussed in this Chapter, infra) has replaced the language of management with the language of decision-making, re-casting the guardian as a decision-maker (substitute, assisting, or supporting, depending on an individual’s decision-making ability and the options available in a particular jurisdiction). 1 The Oxford English Dictionary, 2015, sub verbo “guardian”. 2 Ibid. Chapter 2 16 2.2.1 Adult guardianship legislation Adult guardianship is currently provided for by legislation in all Canadian provinces. 3 Despite differences between provincial statutes, Canadian guardianship legislation shares the following fundamental characteristics: A finding of present and projected4 legal incapability made by a public decision-maker (a court in the case of court appointed guardianship or a Health Authority designate in the case of statutory guardianship); 5 A requirement that medical evidence of incapability be provided, and accepted, by the public decision-maker; Appointment of a guardian by that public decision maker after incapability has been established (in the case of court appointed guardianship, the public decision-maker may accept or reject the guardian proposed, or choose between would-be guardians); Ongoing oversight with regard to the guardianship relationship by the court and the Public Guardian and Trustee (or analogous public body/officer). Within this general framework, distinctions between provincial legislation are both substantive and organizational. Adult guardianship legislation may be provided for in a stand-alone statute or bundled together with legislation pertaining to “advance planning” instruments (such as powers 3 Adult Guardianship and Trustee Act, SA 2008, c A-4.2; Adult Guardianship Act, RSBC 1996, c 6; Patients Property Act, RSBC 1996 c 349; The Adult Guardianship and Co-decision-making Act, SS 2000, c A-5.3; Vulnerable Persons Living With a Mental Disability Act, CCSM c V90; Substitute Decisions Act, 1992, SO 1992, c 30; Supported Decision Making and Adult Guardianship Act, SPEI 1997, c 49; Incompetent Persons Act, RSNS 1989, c 218; being Schedule A of the Decision Making, Support and Protection to Adults Act, SY 2003, c 21; Guardianship and Trusteeship Act, SNWT (Nu) 1994, c 29; Infirm Persons Act, RSNB 1973, c I-8; Mentally Disabled Persons’ Estates Act, RSNL 1990, c M-10. 4 “Projected” does not mean irreversible; all guardianship legislation provides for a person to be found no longer in need of a guardian. See Patients Property Act, supra note 3 (“[o]rder declaring patient no longer incapable”, s 4). The Yukon’s Adult Protection and Decision Making Act, supra note 3, at Schedule A of the Decision Making, Support and Protection to Adults Act, supra note 3, also provides for temporary guardianship with respect to financial decision-making. 5 Statutory guardianship refers to the legislative mechanism through which the Public Guardian and Trustee is appointed as guardian of finance (only) for a person who has been found to be incapable by a health authority designate. This procedure is described in more detail in this chapter and in Chapter 5. Chapter 2 17 of attorney or health directives) in a single piece of legislation.6 The language of “guardianship” may or may not be used; in British Columbia, for example, the Patients’ Property Act refers to court appointed guardians as “committees” and the person subject to guardianship as a “patient.” Adult guardianship legislation in all Canadian jurisdictions provides for court appointed guardianship. Statutory guardianship (which provides for the Public Guardian and Trustee to be appointed as guardian of finances through an extra-judicial process) is provided for in Canada only in British Columbia and Ontario.7 The statutory guardianship process in each province is broadly similar, providing for appointment of the Public Guardian and Trustee as guardian of finances and property8 where a certificate of incapability or incapacity has been issued by a health authority designate. Ontario’s Mental Health Act provides that a certificate of incapacity may be issued only with respect to a patient of a psychiatric facility. Part 2.1 of the British Columbia Adult Guardianship Act provides that any person having reason to believe that an adult may be incapable of managing his or her financial affairs may notify the Public Guardian and Trustee (PGT); the PGT then arranges for a two-part (functional and medical) mental capacity assessment; and the Health Authority designate is empowered to issue a certificate of incapability following that assessment. A health care provider who has reason to believe that an adult may be incapable of managing his or her financial affairs may directly request an assessment (without first making a report to the PGT). The costs associated with administering the person’s finances and/or property are borne by the individual (the Public Guardian and Trustee reimburses itself from the account of the person for whom it acts as guardian). At present, guardianship legislation in Canada includes both post-reform and traditional (pre-reform) legislative models. Despite distinctions between these models (discussed in more detail in the following section) the essential guardianship mechanism remains the same: the appointment of one person to make decisions and act on behalf on another with respect to her or his (broad or narrow) incapability or (where provided for in reform legislation) to assist the 6 See e.g. Ontario’s Substitute Decisions Act, supra note 3. See also Alberta’s Adult Guardianship and Trusteeship Act, supra note 3. 7 In Ontario, statutory guardianship (like court appointed guardianship) is dealt with in the Substitute Decisions Act, supra note 3; in British Columbia, statutory guardianship is dealt with in Part 2.1 of the Adult Guardianship Act, supra note 3. 8 The PGT may decline the appointment/request further assessment. Chapter 2 18 individual in making those decisions. The discussion below refers to/includes both traditional and post-reform guardianship legislation. Adult guardianship legislation in all provinces provides for “substitute” decision-making, ie, for a guardian (whether appointed by a court or through statutory guardianship) to make certain kinds of decisions on behalf of a person found to be incapable in one or more decision-making domains. Post reform legislation incorporates the principle that the substitute decision maker must effect, in so far as possible, the decision that the individual herself would have made if capable of doing so.9 If that decision cannot be known or ascertained, the decision must be made in the best interests of the individual (a kind of default would have made decision, if we presume that individuals are most likely to make decisions in their own best interests). Adult guardianship legislation in Alberta,10 Saskatchewan,11 Manitoba12 and the Yukon13 provides for assisted-decision-making (in which decisions are made by the individual together with an appointed co-decision maker) in addition to substitute decision-making; both Prince Edward Island14 and British Columbia15 have passed but not brought into force legislation providing for assisted decision-making.16 The Yukon’s Adult Protection and Decision Making Act does not allow courts to make assisted decision making orders, but does allow adults to enter into supported decision-making agreements (if the adult understands the nature and effect of such an agreement). Similarly, Alberta’s Adult Guardianship and Trustee Act (Division 2) provides for an adult to make a “supported decision-making authorisation” and gives him or her certain powers for this purpose. Division 3 provides for the court appointment of a co-decision-maker only regarding personal “matters” or decisions. Legislation in Saskatchewan (the Adult 9 See, Adult Guardianship and Trustee Act, supra note 3, s 2(d): “in determining whether a decision is in an adult’s best interests, consideration must be given to any wishes known to be expressed by the adult while the adult had capacity, and, any values and beliefs known to have been held by the adult while the adult had capacity”. 10 Adult Guardianship and Trustee Act, ibid. 11 The Adult Guardianship and Co-decision-making Act, supra note 3. 12 Vulnerable Persons Living With a Mental Disability Act, supra note 3. 13 Adult Protection and Decision Making Act, supra note 3. 14 Supported Decision Making and Adult Guardianship Act, supra note 3. 15 Adult Guardianship Act, supra note 3. 16 Part 2 of British Columbia’s Adult Guardianship Act, supra note 3, was intended to replace the Patients Property Act, supra note 3 (see discussion infra); Prince Edward Island’s Supported Decision Making and Adult Guardianship Act, supra note 3, has also yet to be proclaimed. Chapter 2 19 Guardianship and Co-decision-making Act) provides for the court to issue an assisted decision-making order in both property and personal matters. Ontario’s Substitute Decisions Act does not provide for supported or assisted decision-making at this time. 2.2.2 Scope of guardianship authority The scope of decision-making authority conferred on a guardian as substitute decision-maker may be very broad, or limited to certain categories of decisions (those categories are defined in the applicable legislation). The scope of decision-making authority is determined by the mental capacity finding preceding the guardian’s appointment (the assessment of a person as capable of making “personal” decisions but not decisions about financial matters, for example).17 The availability of more limited forms of guardianship in terms of scope of authority, therefore, depend on the availability of finer of more precise assessments of decision-making capacity. Both traditional and reform legislation provides for appointment of a plenary guardian who “stands in the shoes” of the person (with a few exceptions such as marriage and will-making).18 Traditional and reform legislation also provides for appointment of a guardian with respect to relatively capacious categories of decisions: decisions regarding finance and property, on the one hand, and “personal” decisions (including health care) on the other. Reform legislation also provides for guardians to be appointed with respect to more limited kinds of decisions. Ontario’s Substitute Decisions Act, for example, provides that a guardian may be appointed where a person is incapable with respect to any or all of the following decisions relating to personal care: health care, nutrition, shelter, clothing, hygiene or safety.19 Alberta’s Adult Guardianship and Trustee Act provides that a guardian shall be granted authority to act and make decisions only with 17 The kind and “degree” of capacity required turns on the complexity of the matter in question. See Banks v Goodfellow (1870), LR 5 QB 549 (Eng). This is why marriage has traditionally required a relatively low level of capacity, and the essence of marriage has been characterised in the simplest of terms. See Banton v Banton (1998), 164 DLR (4th) 176 (ONSC). 18 The Patients Property Act, supra note 3, s 15 provides that the committee [the language used to describe a guardian in the Act] “has all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and of sound and disposing mind” with regards to the domain/s (property, person or both) in which the person has been found incapable. 19 Supra note 3. A person is considered to be incapable of making a decision about these matters if she or he “is not able to understand information relevant to making a decision” concerning that matter, s 45; Section 55 provides that the court may appoint a guardian for a person who is incapable of personal care (as defined) above and in need of a person authorised to make decisions on her or his behalf. Chapter 2 20 respect to those personal matters considered necessary, including: the adult’s health care; where, with whom and under what conditions the adult is to live, either permanently or temporarily; with whom the adult may associate; the adult’s participation in social activities; the adult’s participation in any educational, vocational or other training; the adult’s employment; the carrying on of any legal proceeding that does not relate primarily to the financial matters of the adult; and any other personal matters as the Court considers necessary.20 Within the scope of her authority, a guardian can both over-ride mere choices that are not true decisions (the mere choice to make a significant gift to a new friend, for example) and make or assist with choices/decisions where the individual cannot express or effect any choice for herself or needs help in doing so.21 These guardianship tasks are very different in nature, although the legislation does not distinguish between them but refers to both more generically in terms of decision-making. The tension with autonomy is more acute in relation to over-riding mere choice; supported and assisted decision-making is also more coherent in the second context (helping the person to formulate and express a decision) than the first (helping the person to reverse a mere choice). Over-riding mere choice is justified in traditional parens based guardianship on the basis of protection. The theoretical framework of medico-legal guardianship reform conceptualises substitute decision-making as a mechanism for implementing the “real” decision the individual would have made if capable of doing so thereby preserving the individual’s true, if no longer independently extant, autonomy. This explanation is of course less credible with regard to the person who has no past, capable self; the question of what the person in that situation would have done if capable is abstract only, leaving “best interests” as the default basis on which mere choice is over-ridable (one problem to which the supported decision-making paradigm, discussed infra, is a response). 20 Supra note 3, s 33. 21 Substitute decision-making enables the substitute decision-maker to make a decision on behalf of another but does not preclude her from consulting to the fullest extent possible with the individual in making that decision; many adult guardianship statutes require the substitute decision maker to do so (including both the “reform” Substitute Decisions Act, supra note 3, and the “traditional” Patients Property Act, supra note 3. Chapter 2 21 2.3 From the law of the manor to supported decision-making and the Convention on the Rights of Persons With Disabilities: the history of guardianship in Anglo-Canadian law 2.3.1 Introduction As described in the preceding section, adult guardianship legislation in Canada, whether pre or post-reform, conforms to the medico-legal guardianship model structured by the mental capacity construct described in Chapter 4. This model is of a piece with the culturally authoritative bio-medical paradigm and the explanation of human behaviour it provides. The medico-legal guardianship model is neither natural nor inevitable, however. Most recently, medico-legal guardianship has been challenged by the emergent supported decision-making paradigm (as discussed infra). As described below, guardianship has historically been responsive to both practical and ideational changes in the wider social context. 2.3.2 Lost in the mists of time: the emergence of adult guardianship in Anglo-Canadian law “Adult guardianship” is a modern term, a product of the 20th century. The historical laws and legal mechanisms referred to in this section are functionally akin to (and so can be considered early forms of) guardianship; in this functional sense, some form of guardianship has been part of English law from the “mists of time”22 to the present day. English laws relating to persons described as “lunatics” and “idiots” predate the common law. According to Prof. Doug Surtees (in his excellent account of the origins of adult guardianship), Henry II assumed control over the property of persons of “unsound mind” at some point towards the end of his reign in the 12th century.23 Prior to this assertion of Kingly jurisdiction, the authority to take possession of the land of a tenant unable to perform his feudal duties belonged to the feudal Lords of the Manor.24 The King’s assumption of the Lords’ authority has been explained as part of the general extension of centralised Crown jurisdiction during this period,25 22 E (Mrs) v Eve,  2 SCR 388 at para 32 [In Re Eve]. 23 Doug Surtees, “How Goes the Battle? An Exploration of Guardianship Reform” (2012) 50:1 Alta L Rev 115. The Supreme Court of Canada, in In Re Eve, ibid at para 32, described the origins of the jurisdiction as “lost in the mists of antiquity” although the “most probable theory” was that Edward I had assumed the authority from the feudal lords in the 13th century. 24 In Re Eve, supra note 22. 25 Surtees, supra note 23. Chapter 2 22 and as a response to the “manifold abuses of this power” by the feudal Lords, “at last providing, by common consent, that it should be given to the King as the general conservator of his people, in order to preserve the idiot from wasting his estate, and reducing himself and his heirs to poverty and distress.”26 Sir James Munby27 and others (including the Supreme Court of Canada in Re Eve) have located the origins of the parens patriae jurisdiction with respect to mentally incapable adults in this transfer of authority to the King from the feudal Lords. According to the account given by the Supreme Court of Canada in Re Eve, the King’s jurisdiction over “mental incompetents” (inherited from the feudal Lords, then transferred to the Chancellor, and eventually to the superior courts) was eventually merged or “assimilated” with the court’s “wardship” jurisdiction regarding children. This “assimilated” parens patriae jurisdiction “continues to this day” so long as it has not been specifically supplanted by legislation. 28 The ancient jurisdiction originally distinguished between the Crown’s interest in the stewardship of property belonging to “idiots” or “fools” (individuals never having possessed the mental ability required to manage their property)29 and “lunatics” or non compos mentis (those losing this ability as adults).30 The distinction between the two, and the respective jurisdiction of the Crown with regard to each, was recorded in (if not created by) the Statute De Prerogativa Regis 26 George Bowyer, The English Constitution: A Popular Commentary on the Constitutional Law of England (London: Levey, Robson and Franklin, 1841) at 277-278. 27 Munby, J., “Protecting the Rights of the Vulnerable and Incapacitous Adults: The Role of the Courts- An Example of Judicial Lawmaking” (2014) Child and Family Law Quarterly 64 at 77. According to quotes in Sir Henry Theobald, The Law Relating to Lunacy (London: Stevens and Sons Ltd., 1924), cited in In Re Eve, supra note 22, De Prerogativa Regis (described by Theobald as an instrument regarded as a statute that dates from the thirteenth or early fourteenth century) recognized the jurisdiction but did not create it. Theobald speculates that “the most probable theory [of its origin] is that either by general assent or by some statute, now lost, the care of persons of unsound mind was by Edw. I taken from the feudal lords, who would naturally take possession of the land of a tenant unable to perform his feudal duties” at para 32. 28 See Beson v Director of Child Welfare (Nfld),  2 SCR 7166. See also In Re Eve, supra note 22 at para. 42 (“even where there is legislation in the area, the courts will continue to use the parens patriae jurisdiction to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit”). 29 FNB 233; Co Litt 42; Fleta 1.6, c 42; Joseph Harrison, The Practice of the High Court of Chancery, vol 1 (Philadelphia: William P. Farrand, 1807) (“An idiot, or natural fool, is one that hath no understanding from his nativity, and therefore is by law presumed unlikely to attain any. A man is not an idiot if he hath any glimmering of reason, so that he can tell his parents, his age, or other common matters. But a man who is born deaf, dumb and blind is looked upon by the law as in the same state with an idiot; he being supposed incapable of any understanding, as wanting all those senses which furnish the human mind with ideas.” at 490). 30 Harrison, supra note 29 at 491: “A lunatic, or non compos mentis, is one who hath had understanding, but by reason of disease, grief, or other accident, hath lost the use of his reason. A lunatic is indeed properly one who hath lucid intervals, sometimes employing his senses, and sometimes not, and that frequently depending on the change of the moon. But under the general name of non compos mentis… are comprised not only lunatics, but persons under frenzies, or who lose their intellects by disease; those that grow deaf, dumb and blind, not being born so; or such, in short, as are judged by the court or chancery incapable of conducting their own affairs.” Chapter 2 23 in the late thirteenth century.31 Non compos mentis individuals were treated by the law as if they could regain mental capacity in the future (whether or not they currently enjoyed “lucid” moments) and, accordingly, the Crown was required to manage the property of such a person on that person’s behalf, taking no profits. Having “once lived his life on an equal footing with others… there was always that glimmer of hope that he would do so again”,32 and should a lunatic regain lucidity (either permanently or episodically) his property and profits would be returned. The property of fools, on the other hand, who would never regain capabilities they had never enjoyed, was managed on behalf of the Crown; the profits from their estates became the King's property, subject only to the King's duties to provide the incapable individual with the necessities of life, not commit waste or destruction, and to pass the estate to any heirs upon death. The Crown’s authority with regards to ether “idiots” or “lunatics” could be granted to private individuals (as proto-guardian figures) but the implications attendant on doing so were very different in each case. Before 1540 (and the establishment of the Court of Wards and Liveries) a private person had to purchase custody of an “idiot” by paying a fine together with “rent” (both payable to the Crown) with respect to her or his property. A person purchasing guardianship status in this way was obliged to protect the individual, to provide him or her (but not the individual’s family) with the necessities of life, and to protect and maintain the individual’s estate. In return, the guardian was able to retain any profits over and above the rent owed to the Crown, and expenditures required to provide for the individual. In the case of persons found to be “lunatics” or non compos mentis, in contrast, a private person could obtain a grant of custody and access without paying a fine. The guardian of a person adjudged to be non compus mentis was required to maintain the individual and his family at his or her social rank, and to preserve and protect the person’s estate. Unlike the guardian of a person adjudged to be an idiot, the guardian of a lunatic was not entitled to keep any surplus revenues (as all property was to be managed for the benefit of the lunatic). Identification of an individual as belonging to either category was carried out by a jury of twelve men, on the Chancellor’s issuance of a writ. 31 Surtees, supra note 23. 32 Louise Harmon, “Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment” (1990) 100:1 Yale LJ 1 at 16. Chapter 2 24 The very different practical consequences of a “finding” of idiocy as opposed to lunacy seems to have led to an early blurring of the distinction between these two categories, despite the sharp distinction drawn between them in the Statute De Prerogativa Regis. Historian Richard Neugebauer has shown that, although a writ for finding a person to be non compos mentis was established at least by the 13th century,33 the writ de idiota inquirendo (the writ issued for the purpose of establishing idiocy) was by far the more common proceeding. Neugebauer suggests that this apparent contradiction between law “on the books” and law “in practice” could be explained by the relative profitability (from the Crown’s perspective) of a “finding” of idiocy. Significant changes to this scheme took place with the establishment of the Court of Wards and Liveries in 1540. Fines for purchasing the custody of persons referred to as idiots were abolished; rents, in relation to their property, also disappeared around this time,34 and the property of idiots or fools came to be managed according to the same standards as the property of lunatics.35 The wheel, in other words, had turned; idiots were increasingly dealt with in the same way as lunatics,36 creating a more generic category of lunacy in which the old distinctions were increasingly blurred. Guardians for both classes of persons were now required to maintain individuals and their families according to their social status (as opposed to mere necessities), in addition to protecting and preserving the person’s estate. Guardians of idiots (those who had been given a “grant of idiocy” by the Crown) were no longer entitled to keep surplus property revenues but were required to account for revenues and expenditures to the Court.37 Professor Surtees, in his account, directs the reader to Blackstone’s comment regarding this shift, that “the 33 Richard Neugebauer, “Mental Handicap in Medieval and Early Modern England” in David Wright & Anne Digby, eds, From Idiocy to Mental Deficiency: Historical Perspectives on People with Learning Disabilities (Abingdon: Routledge, 1996) 22 at 32; See also Sir Anthony Fitzherbert, Nouvelle Natural Brevium (London: Richard Tottell, 1553). 34 Neugebauer, ibid at 33. 35Surtees, supra note 23 (referring to Blackstone’s comment that “the clemency of the crown and pity of juries gradually assimilated the condition of idiots to that of lunatics” at 117); See also Sarah Burningham, “Developments in Canadian Adult Guardianship and Co-Decision-Making Law” (2009) 18:1 Dal J Leg Stud 119. 36 Neugebauer, supra note 33 at 35. Prior to 1540 80% of all grants were “idiocy grants”; between 1540-1560 this number dropped to 60%, and during the reign of Elizabeth I to 50%; by 1640 it was nor more than 30%. 37 Neugebauer, supra note 33 at 40. Chapter 2 25 clemency of the crown and pity of juries gradually assimilated the condition of idiots to that of lunatics”38. After the abolishment of the Court of Wards and Liveries in 1660, the Crown assumed responsibility for the personal care and well-being of both lunatics and fools in addition to property stewardship (a jurisdiction eventually assumed by the Chancery)39 although personal responsibilities were most often in fact carried out by families. The Practice of the High Court of Chancery Vol. 1 (published in 1808)40 described the method of proving a person to be a lunatic as “very similar to that of proving him an idiot”;41 issuance by the chancellor of a writ “in the nature of” the writ de idiota inquirendo to inquire into the individual’s mind, determination by jury of non compos mentis, and commitment of the care of the person (together with an allowance for his or her maintenance) to a “friend” known as a committee.42 To avoid what were referred to as “sinister practices” the “next heir is seldom permitted to be the committee of his person; because it is in his interest that the party shall die. But… there lies not the same objection against his next of kin, provided he be not his heir; for it is in his interest to preserve the lunatic’s life, in order to increase the personal estate by savings, which he or his family may hereafter be entitled to enjoy.”43 2.3.3 Private guardianship and the emergence of substitute decision-making The idea of substitute decision making, introduced into guardianship in the 19th century in the case of Ex parte Whitbread,44 was a radical conceptual innovation. The idea of the guardian as “substitute decision maker” (rather than manager) introduced the abstract, and (perhaps co-incidentally) the ideological, into what had been understood as a practical response to a practical problem. 38 Surtees, supra note 23 at 117; See also Burningham, supra note 35. 39 Surtees, supra note 23 at 117; See also Burningham, supra note 35. 40 Harrison, supra note 29 at 491, in which it is stated that it “seldom happens that a jury find a man an idiot… but only non compos mentis”. 41 The Court of Wards and Liveries was abolished in 1646 (during the Commonwealth) and following the restoration the Crown’s parens patriae power with relation to persons of “unsound mind” (including the proto-guardianship mechanism discussed here) was assigned to the Lord Chancellor. 42 Harrison, supra note 29 at 491. 43 Ibid at 492. 44  35 Eng Rep 878 (Ch) [Ex Parte Whitebread]. Chapter 2 26 Louise Harmon has identified substitute decision making as a legal fiction adopted mid-way through the 19th century for the purpose of effecting something that could not otherwise be done: enabling the distribution of income or property from a lunatic’s estate to his or her family members during that person’s life. Such a distribution would not have been permissible under the original mandate to preserve the lunatic’s estate in his or her interests.45 Harmon describes how the doctrine of “substituted judgment” was adopted through the effective exercise of equitable jurisdiction over the affairs of lunatics (as gradually asserted through the exercise of the Chancellor’s powers of administration) in the mid-19th century, beginning with the “seminal” decision of Lord Eldon in Ex parte Whitbread.46 Lord Eldon’s “crafting” of the legal fiction of substitute decision making in this case allowed him to resolve the conflict between his evident desire to allow the petition brought before him,47 the core liberal legal principle of private property (setting the boundary between state power and individual freedom), and the court’s mandate (descended from the King’s obligation) to preserve the lunatic’s estate in his or her interests.48 Without recourse to the fiction of substitute judgment, these principles would have prevented Lord Eldon from accessing the private property of one person for the benefit of another. In articulating the fiction, Lord Eldon “reiterate[ed] the principle of tenderness to the lunatic” (“the Court, in making the allowance, has nothing to consider but the situation of the Lunatic himself, always looking to the probability of his recovery, and never regarding the interest of the next of kin”); the very exercise of that “tenderness,” in a case of this kind, required the court to adopt an internal and subjective point of view to “discover what the lunatic himself probably would have done” and carry out those “probable desires.”49 In this case, those “desires” were found to support granting an allowance to the petitioner. The closeness of family relation 45 Harmon, supra note 32. 46 Ex Parte Whitebread, supra note 44, cited in Harmon, ibid at 19. 47 Harmon, supra note 32 at 22. “By all appearances, Mr. Hinde [the “lunatic” in the case] was being well cared for, and the allowance was to go to a prospective legatee. And perhaps the niece was a sympathetic petitioner. She may have been destitute, too ill to work, or the mother of hungry children. We do not know the circumstances of her need. All we really know, and this only by inference, is that Lord Eldon was inclined to grant her petition.” 48 Ibid (“the Court… has nothing to consider but the situation of the Lunatic himself, always looking to the probability of his recovery, and never regarding the interest of next of kin” at 22), citing Lord Eldon’s judgment in Ex Parte Whitbread, supra note 44. The jurisdiction of the Courts, descended from the King’s delegation of his personal responsibility to the Lord Chancellor, developed into something like an equitable jurisdiction “by virtue of [the Chancellor’s] general power, as holding the great seal, and keeper of the Kings conscience.” See ibid at 19, referring to Joseph Story, Commentaries on Equity Jurisprudence: As Administered in England and America, 12th ed (Boston: Little, Brown & Company, 1877) at 608. See also Surtees, supra note 23. 49 Harmon, supra note 32 at 22. Chapter 2 27 (the petitioner was a niece), together with “evidence of the lunatic’s former intentional states” were crucial in determining his “probable desires” in this case.50 The focus of Harmon’s critical analysis is the process through which Lord Eldon’s fiction jumped categories, moving from the context in which it was developed (distribution of the property of a wealthy lunatic to a relative in need) to a very different (and conceptually inappropriate) context: health-related choices for persons who had always been considered to have extremely limited mental abilities (the historical category of idiots). In this latter context, “evidence of former intentional states” would be non-existent; it was highly strained to construct the choice to remove a person’s kidney to implant in another, for example, or cease life-saving treatment, as in that person’s best interests because it was the decision that he or she would really have made if capable of doing so.51 This importation of substitute decision-making may be understood in the broader context of the disappearance of developmental/intellectual disability52 within a broader more abstract category of “lunacy” (erasing meaningful differences). The significance of that distinction in terms of embodied experience (life as lived) has re-emerged in the supported decision-making critique of substitute decision-making. 2.4 Emergence of the modern law: from the Imperial Lunacy Act to the Patients Property Act Prior to the 19th century, the early forms of guardianship described above were primarily focused on stewardship, or management of the individual’s property. The prevention of impoverishment incidentally protected the individual’s person by ensuring that resources were available to provide for his or her needs. Responsibility for the protection of both property and person, and the authority necessary to effect that responsibility, belonged to the Crown. Private guardianship- the grant of authority/responsibility for an incapable person- was a delegation, to a private individual, of that public function. This essentially public nature is retained in the modern structures of guardianship, in which a finding of incapability by a court or public body (in the case of statutory guardianship) is followed by the appointment of a private individual or public officer to carry out the guardianship task, subject to ongoing public over-sight. 50 Ibid at 25. 51 Ibid 31-71. 52 The old category of fools. Chapter 2 28 The origins of modern adult guardianship legislation can be traced to the Imperial Lunacy Act of 1890,53 following the Lunacy Act of 1845.54 The primary focus of both statutes was the administration of asylums and private hospitals for “lunatics” (an inclusive category in which the old categories of idiots and lunatics were merged), including procedures relating to admission and treatment. The Imperial Lunacy Act provided that “lunacy” could be established through medical affidavits, as an alternative to a full judicial inquiry, 55 defining a lunatic as “any person idiot, lunatic or of unsound mind and incapable of managing him-self and his affairs, and whether found lunatic by inquisition or not” (formally merging the categories of lunatic and idiot).56 The provisions relating to guardianship set out procedures for appointing an agent to manage the property of a lunatic, and gave courts the power to appoint a relation or friend to “take charge” of the lunatic and to make orders for the commitment of his or her estate57. The Imperial Lunacy Act also provided for a “Master-in-Lunacy,” setting out his powers and obligations, including the “general care, protection and management of the estate of all lunatics” and supervision and enforcement of “the performance of all duties and obligations of committees [guardians] of lunatics.”58 Legislation effectively hiving off those portions of the Imperial Lunacy Act relating to guardianship (with the larger part of the Act becoming the basis for modern mental health legislation) created a new legal category in the early part of the 20th century: adult guardianship. The language of “lunacy” was replaced with “incapability” and “mental infirmity” in the early 20th century, a shift that Israel Doron has associated with the “development of medicine, biology, a more “scientific” legal culture, and, especially, the emergence of modern psychiatry.”59 The addition of age, as an enumerated, specific source of “mental infirmity.” was another 20 century development. Adult guardianship legislation remained primarily concerned with the 53 53 Vict, c 5. 54 8&9 Vict, c 100. 55 Robert M Gordon & Simon Verdun-Jones, Adult Guardianship Law in Canada (Toronto: Carswell, 1992) at 1-17, 1-18. See also, Canadian Centre for Elder Law Studies, (2006) A Comparative Analysis of Adult Guardianship Laws in BC, New Zealand and Ontario, CCLES Report No. 4 (Vancouver: Canadian Center for Elder Law Studies, October 2006). 56 Imperial Lunacy Act, supra note 53, s 3. 57 Burningham, supra note 35. 58 Imperial Lunacy Act, supra note 53, Part V (“Administration and Management of the Estate of Lunatic Patients and Lunatics”). The “Master-in-Lunacy” is the ancestor of the modern office of the Public Guardian and Trustee. 59 “Thus, lunacy was replaced by incompetence.” See Israel Doron, “From Lunacy to Incapacity and Beyond: Guardianship of the Elderly and the Ontario Experience in Defining ‘Legal Incompetence’” (1999) 19:4 Health L Can 95 at 101. Chapter 2 29 management of an incapable person’s property and estate, on the assumption that the majority of mentally inform persons would be institutionalised (thereby providing for the personal needs of such persons). Guardianship of “the person” was provided for, but given little descriptive content. Once appointed, a guardian assumed the power to stand in the person’s shoes with regards to his or her property, person, or both (a “plenary” guardianship order). Statutory guardianship” also developed during this period. Adult guardianship law in Canada generally did not depart in any significant way from the traditional Imperial Lunacy Act model until the “wave” of adult guardianship reforms beginning in the late 1970s, and legislation in several Canadian jurisdictions retains many aspects of the traditional model.60 British Columbia’s Patients Property Act, for example, provides for a “committee” (guardian) to be appointed by a court for a “patient” (a person who is “by reason of mental infirmity arising from disease, age or otherwise is incapable of managing his or her affairs” or “his or her self”). 61 The committee of a person incapable of managing his or her “affairs” is empowered to exercise “all the rights, privileges and powers with regard to the estate of the patient as the patient would have if of full age and sound and disposing mind”;62 where the person is incapable of managing him or her “self” the committee “has the custody of the person of the patient.” Establishing the patient’s mental infirmity requires affidavits from two medical practitioners setting out their opinion that the individual is incapable of managing his or her affairs and/or person because of mental infirmity arising from disease, age or otherwise or disorder or disability of the mind arising from the use of drugs. The legislation provides no further guidance regarding the meaning of incapability, the manner of its assessment, or the exercise of guardianship authority. Until 2014 (s discussed infra), the Patients Property Act also provided for statutory guardianship (requiring only issuance by a health authority designate of a certificate of incapability). 60 Patients Property Act, supra note 3. Canadian jurisdictions retaining traditional guardianship legislation also include New Brunswick (Infirm Persons Act, supra note 3), Nova Scotia (Incompetent Persons Act, supra note 4), and Newfoundland (Mentally Disabled Persons' Estates Act, supra note 3). 61 Prior to reform of the statutory guardianship process (now dealt with in Part 2.1 of the Adult Guardianship Act, supra note 3) the Patients Property Act, supra note 3, also provided for statutory guardianship. 62 Although the guardian would be ultimately accountable to the court, and required to keep accounts of expenditures. Chapter 2 30 The guardianship reform movement discussed in the following section emerged in part as a critique of traditional guardianship legislation like the Patients Property Act. 63 Guardianship reform led to legislative change in several Canadian provinces; the first of the “new” guardianship statutes was Alberta’s Dependent Adults Act, passed in 1978. In British Columbia, a reform statute passed in 1993 (Part 2 of the Adult Guardianship Act)64 was intended to replace the Patients Property Act; that statute remains un-proclaimed65 although guidelines issued by the Public Guardian and Trustee provide for application of the Patients Property Act in a way that is consistent with the modern model. These developments are discussed in more detail in the following section. 2.5 Mental capacity, decision-making, and the reform movement in adult guardianship The adult guardianship reform movement arising in the mid-1970s was a response to the perceived paternalism of the traditional model described above. From that time to the present, some form of legislative reform involving guardianship or other aspects of substitute decision making has taken place in all Canadian jurisdictions. Variation exists between provincial jurisdictions (as discussed in Part 2.2.1 of this Chapter) but the general characteristics of adult guardianship reform can be summarised as follows: An emphasis on procedural fairness, rights protection and self-determination; Modernization of advance planning documents (e.g. powers of attorney; representation agreements); New and refined assessment procedures; Statutory articulation of duties for guardians; Statutory schemes for responding to allegations of abuse, neglect and self-neglect of vulnerable and/or incapable adults; Statutory schemes relating to health case consent (including codification of common law rules); 63 Statutory guardianship, as a form of guardianship without court involvement, also came under criticism during this period, although its practical usefulness ensured its survival. 64 Supra note 3. 65 Part 3 of the Adult Guardianship Act, supra note 3 (proclaimed) sets out an adult protection scheme (implemented by the Community Living and Health Authorities in the province as designated authorities). Chapter 2 31 Modernization of the legal structure for a Public Guardian and Trustee or analogous office/body.66 The language of mental infirmity was criticised for creating a system in which guardians were appointed on the basis of status: the person who was found to be mentally infirm (because of a developmental disability or diagnosis of dementia, for example) would, on that basis, be considered incapable of “managing” her-self and/or her property and have a guardian appointed to do so on her behalf. 67 Guardianship reform replaced the diagnosis of mental infirmity (as the basis for a finding of legal incapacity) with a more circumscribed assessment of “decision-making ability” or mental capacity, focusing on the person’s cognitive ability to carry out specific decision-making functions. It was anticipated that this narrower focus would limit the scope of guardian authority in many (perhaps most) cases. Plenary guardianship (with the guardian standing in the shoes of the adult) would become less common as more limited forms of substitute decision-making became available.68 Within this more precise scope of substitute decision-making authority, a guardian would make the decisions the individual would have made if capable of doing so: a substitute, rather than a replacement, decision-maker. Outside of this limited scope of decision-making authority the individual would retain her or his ability to exercise full independent autonomy without interference. 69 These reforms to adult guardianship, beginning in the 1970s, sought to re-think and re-structure guardianship as a “mechanism for promoting autonomy.”70 The adult guardianship reform 66 Chalke, Jay (2005) Canadian Trends: Guardianship in British Columbia and Other Provinces (A Report Prepared for the Law Reform Commission Annual Conference, Dublin, Ireland, December 2, 2005) at 10. 67 For example, that an individual diagnosed/identified with an infirmity would be, for that reason, subject to guardianship. See Sarita Verma & Michel Silberfield, “Approaches to Capacity and Competency: The Canadian View” (1997) 20:1 Intl J L & Psychiatry 35. 68 “Limited” personal guardianship is provided for in Manitoba, Ontario, Saskatchewan, Prince Edward Island, the Yukon and the Northwest Territories. Limited personal guardianship of this kind is also provided for in British Columbia’s (still un-proclaimed) Adult Guardianship Act, supra note 3, Part 2 (Part 2.1 of the Adult Guardianship Act applying to statutory guardianship, discussed below, came into force in December of 2014). The “old” (but still in force) guardianship legislation in British Columbia (the Patients Property Act, supra note 3) does not provide for limited personal guardianship. 69 A partial or limited guardian is granted specific and limited powers and authorities by the court and those powers not granted to the guardian remain with the adult. Adult Guardianship and Trusteeship Act, supra note 3; Vulnerable Persons Living with a Mental Disability Act, SM. 1993, c. 29; Substitute Decisions Act, supra note 3; Adult Protection Act, RSPEI 1988, c A-5; Adult Protection and Decision Making Act, supra note 3; Guardianship and Trusteeship Act, supra note 3; Adult Guardianship and Co-decision-making Act, supra note 3. 70 Burningham, supra note 35, at 120. Chapter 2 32 movement was coterminous and consistent with the ascendancy of autonomy as both a medical and a legal value71 (enshrined in the Canadian Charter of Rights and Freedoms),72 the extension of civil rights to hitherto excluded groups, and the de-stigmatization of difference. 73 Sarah Burningham has identified “the principle of normalization as particularly important in the development of partial guardianship as plenary guardianship was recognized as being at odds with the goal of integrating people into the community.”74 Writing in Canada, Robert Gordon, Simon Verdun-Jones and Donald MacDougall described adult guardianship reform in the 1980s as “propelled” by “four main factors: the projected impact of the population aging process; a decline in the use of public institutions for the care of those suffering from mental disabilities; a rising concern in relation to abuse and neglect of the elderly; and, the advent of the Canadian Charter of Rights and Freedoms”75, “stimulated” by “an emerging body of criticism aimed at the existing legal framework.”76 Erica Wood has traced the impetus for adult guardianship reform in the United States to civil rights based challenges to institutional commitment procedures, which inspired the early guardianship reform “pioneers” “to take a hard look at the antiquated state guardianship laws that had developed over the last century.”77 A series of high-profile newspaper articles in the United States in the 1980s (Guardians of the Elderly: An Ailing System)78 concluded that the “nation’s guardianship system, a crucial last line of protection for 71 Paul Root Wolpe, “The Triumph of Autonomy in American Bioethics: A Sociological View” in Raymond DeVries & Janardan Subedi, eds, Bioethics and Society: Sociological Investigations of the Enterprise of Bioethics (Englewood Cliff: Prentice Hall, 1998) 38; David J Rothman, Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making (New York: Basic Books, 1991). “By the 1994 edition of Principles [of Bioethics], Beauchamp and Childress had acknowledged that ‘autonomy rights have become so influential that it is today difficult to find affirmations of traditional models of medical beneficence.’… Within a remarkably short time, autonomy had ‘won the day’ and respect for patient autonomy became the central focus in all medical interventions. This occurred especially quickly in the United States, where autonomy and freedom from external control had long been regarded as fundamental ‘American values’. The shift in ethical focus spread to other countries and, by the end of the twentieth century autonomy, had become the dominant value for healthcare ethics in most Western jurisdictions.” Mary Donnelly, Healthcare Decision-Making and the Law: Autonomy, Capacity and the Limits of Liberalism (Cambridge: Cambridge University Press, 2010) at 15 at 15) 72 See Robert Gordon et al, “Reforms in the Field of Adult Guardianship Law: A Comment on Recent Developments” (1987) 6:1 Can J Fam L 149 at 149. 73 In many respects the rise of the modern “non-interventionist” model of adult guardianship is of a piece with the coterminous “non-interventionist” reform movement in child protection. Cf. Margaret Isabel Hall, “A Ministry for Children: Abandoning the Interventionist Debate in British Columbia” (1998) 12:2 Intl JL Pol’y & Fam 121. 74 Burningham, supra note 35 at 142. 75 Gordon et al, supra note 72. 76 Ibid at 151. 77 Erica F Wood, “History of Guardianship” in Mary Joy Quinn, ed, Guardianships of Adults: Achieving Justice, Autonomy and Safety (New York: Springer Publishing, 2005) 17 at 20. 78 Fred Bayles & Scott McCartney, Guardians of the Elderly: An Ailing System, The Associated Press, September 20-24, 1987. Chapter 2 33 the ailing elderly, is failing many of those it is designed to protect” citing a number of horror stories in which sweeping powers over the property of the elderly were granted (and then exploited) without due process and on the basis of casual “allegations” of dementia. The 1988 “Wingspread” National Guardianship Symposium held in Wisconsin in 1988, acknowledged as a seminal point in the guardianship reform movement, was organized in reaction to the Guardians of the Elderly “revelations.”79 Responding to these concerns (both practical and principled), the new reform model reframed the purpose of guardianship as the protection of the (“constantly at risk”) autonomy of disabled and older persons, by providing “legal protection against the unwanted paternalism of over-zealous health care and human-service professionals, who often sought to intrude as co-conspirators with self-interested family members”.80 In this way, guardianship would become a mechanism for protecting rather than removing autonomy (the critique levelled at the traditional model).81 The scope of guardianship authority would flow from the domain-specific scope of the individual’s impaired decision-making ability, defined as the cognitive ability to understand the nature of a particular decision (including information relevant to that decision) and its reasonably foreseeable consequences. This definition (adopted by Weisstub’s Enquiry on Mental Capacity carried out in 199082 and subsequently adopted by provinces carrying out guardianship reform)83 parallels the decision-specific approach to mental capacity areas of the law other than guardianship (as discussed in Chapter 4). The objective scientific assessment of cognitive decision-making capacity, by purporting to remove value-based judgment from the assessment of 79 For an account of the history of the American guardianship reform movement see Marshall B Knapp “Reforming Guardianship Reform: Reflections on Disagreements, Deficits, and Responsibilities” (2002) 31:3 Stetson L Rev 1047; Jennifer L Wright “Guardianship for Your own Good: Improving the Well-being of Respondents and Wards in the USA” (2010) 33:5-6 Intl J L & Psychiatry 350 at 352-353; Wood, supra note 77 at 17. 80 Knapp, ibid. at 1051; Burningham, supra note 35 (“[g]uardianship was originally developed as a social and legal tool meant to protect vulnerable persons. It is now evolving as a mechanism to promote autonomy” at 119) 81 Terry Carney, Guardianship, Citizenship, & Theorizing Substitute-decisionmaking Law (Legal Studies Research Paper Series, University of Sydney Law School, 2012) [Sydney Law School Research Paper No 12/25] (the development of private “advance planning mechanisms” during this same period was similarly positioned as “protect[ing] the rights of self-determination of aged people to manage their lives in accordance with their own wishes and values.” at 5) [Carney, Guardianship, Citizenship, & Theorizing Substitute-decisionmaking Law]. See also, Christy Holmes, “Surrogate Decisionmaking in the 90s: Learning to Respect Our Elders” (1996-1997) 28 U. Tol. L. Rev. 605 82 D. N. Weisstub (Chair). Enquiry on Mental Competency: Final Report. (Toronto: Queen’s Printer, 1990). 83 Verma & Silberfeld, supra note 67. Chapter 2 34 decision-making capacity, was key to this re-imagining; requiring, in turn, the development of more precise and value neutral assessment tools (a process described by Kapp and Mossman as the “search for the perfect capacimeter”).84 Assisted/supported decision-making also emerged during this period as an alternative to substitute decision making on a guardianship continuum or spectrum. 85 Assisted/ supported decision-making was intended to provide an alternative to substitute decision making of any form (whether limited or plenary) where the individual was capable of making her or his own decisions with the assistance of another person, a determination made through the decision-specific assessment of mental capacity. These alternative forms of guardianship would be even less intrusive and more supportive of autonomy than limited or circumscribed substitute decision-making, preserving the legal personhood of the individual and avoiding the stigmatising label of incompetence or incapability. A guardianship continuum including this range of alternatives would more realistically reflect the variety of decision-making abilities among individuals, as opposed to the “one size fits all” over-breadth of plenary guardianship. Canadian guardianship legislation incorporating this continuum approach (including both assisted/supported decision-making and substitute decision-making) is discussed in this Chapter under the heading “2.2.1 Adult guardianship legislation”. Alberta was the first Canadian province to pass guardianship legislation incorporating key tenets of the reform model discussed above.86 The new legislation introduced a “functional” determination of capability (identifying a person’s ability to carry out the cognitive “functions” of decision-making), as opposed to the identification of more generalised mental incompetence, as the basis for appointment of a guardian.87 The legislation also incorporated the principle of 84 Marshall B Knapp & Douglas Mossman, “Measuring Decisional Capacity: Cautions on the Construction of a ‘Capacimeter’” (1996) 2:1 Psychol Pub Pol’y & L 73. (“[a] measure that produced a definitive, objective, numerical readout addressing the ultimate capacity question in any treatment setting would carry understandable (even if ultimately illusory) appeal” at 79). 85 Robert Gordon, “The Emergence of Assisted (Supported) Decision-Making in the Canadian Law of Adult Guardianship and Substitute Decision-Making” (2000) 23:1 Intl J L & Psychiatry 61 at 62. See also, Tim Stainton, “Supported Decision-Making in Canada: Principles, Policy and Practice” (2015) 3(1) Research and Practice in Intellectual and Developmental Disabilities 1. 86 Dependent Adults Act, S.A. 1976, c. 63, s. 6(1). 87 Gordon et al, supra note 72, at 152. Chapter 2 35 “limited, tailor-made guardianship”88 corresponding to area-specific decision-making abilities, although plenary guardianship remained available in circumstances where the court was “satisfied that a partial guardianship order would be insufficient to meet the needs of the person.”89 The Act also required that the individual be served with a copy of the guardianship application, a significant procedural reform, and created the office of the Public Guardian and Trustee (providing a guardian-of last-resort for the individual with no friends or family members able and/or willing to take on the role). In British Columbia, a comprehensive reform initiative in adult guardianship and related areas was undertaken in the 1990s, with partial success. A number of individuals, community groups and service groups90 joined together in 1989 to form a coalition (The Project to Review Adult Guardianship) to engage in research, develop proposals, and advocate for reform.91 A parallel inter-ministry government working group was also established during this period; in 1990, community and government came together to form a Joint Working Committee on Adult Guardianship. In the spring of 1992, the Joint Committee released a discussion paper (How Can We Help) based on extensive public discussion and the work of various working groups focusing on specific issues (including a small joint working committee). Further consultation was held around the province and in the fall of 1992 a second version of How Can We Help was published. The Report contained recommendations for legislation, which were submitted to and accepted by government. On the basis of those recommendations, a suite of four statutes92 (referred to collectively as adult guardianship legislation) was passed in 1993. The four statutes came into force in 2000 although not all parts of the legislation were proclaimed. Part Two of the Adult Guardianship 88 Ibid. 89 s. 6(3). 90 Including the BC Association for Community Living and the Alzheimer’s Society of BC. 91 This account in drawn from A.J. McClean Review of Representation Agreements and Powers of Attorney Undertaken for the Attorney General of the Province of British Columbia (Victoria, BC: Ministry of Attorney General (BC), Policy, Planning and Legislation Branch, 2002) at 4. No bibliographic information pertaining to the How Can We Help document is provided in the Report, and the author was unable to find the document itself. See also, Canadian Centre for Elder Law Studies A Comparative Analysis of Adult Guardianship Laws in British Columbia, New Zealand and Ontario, supra note 55 at 3-11. 92 Adult Guardianship Act, S.B.C. 1993, c. 35, see now R.S.B.C. 1996, c.6; Health Care (Consent) and Care Facility (Admission) Act, S.B.C. 1993, c. 48, see now R.S.B.C. 1996, c.181; Public Guardian and Trustee Act, S.B.C. 1993, c. 64, see now R.S.B.C. 1996, c.383. Chapter 2 36 Act, intended to replace the Patients Property Act with respect to both statutory and court-appointed guardianship, has never been brought into force.93 That legislation contained the following elements: the elimination of statutory property committeeship so that guardianships could only be created through court appointment three levels of decision-makers depending on the nature and degree of the adult’s need for a substitute court appointment only where informal solutions do not address the needs of the adult monitors to oversee the conduct of individual guardians court reviews of guardianships including committees appointed prior to the Adult Guardianship Act coming into force. The Office of the Public Guardian and Trustee has identified the following specific concerns with the 1993 law as reasons for the government’s decision not to bring it into force:94 the cost of eliminating statutory committeeships particularly in relation to individuals of modest financial means the cost of having three levels of court appointed substitute decision-maker, particularly in relation to adults with degenerative conditions who might require multiple court appearances the cost and complexities of the evidence needed to determine the level of authority needed the workability of the monitor provisions the cost and intrusiveness of the ongoing court reviews including mandatory capability reassessments and detailed document service requirements 93 Public Guardian and Trustee of British Columbia. Court and Statutory Guardianship: The Patients Property Act and the Adult Guardianship Act (Part 2) An Updated Discussion Paper on Modernizing the Legal Framework (Vancouver, BC: Special Report of the Public Guardian and Trustee of British Columbia, 2005) at 9. 94 Ibid. Chapter 2 37 the cost of reviewing existing Patients Property Act committeeships in order to bring them under the new law. Part 2.1 of the Adult Guardianship Act applying to statutory guardianship (in Part 2.2.1 of this Chapter and in Chapter 5) was brought into force in 2014; court appointed guardianship in British Columbia remains governed by the Patients Property Act,95 although guidelines issued by the Public Guardian and Trustee provide for application of the PPA in a way that is consistent with the modern approach (focusing on decision-making ability rather than infirmity, and limiting guardianship authority where possible). In those jurisdictions where legislative reform has been more successful, however, changes in the law do not appear to have resulted in significant changes to practice, and “[t]he persistence of old ways of doing guardianship, despite changes in substance and procedure in the governing laws” has been described as “a subject for both wonder and concern.”96 Guardianship orders sought and granted remain, in the great majority of cases, orders for plenary guardianship, despite the existence of less intrusive alternatives. Jennifer L. Wright, referring to the American experience, has identified a “disconnect between the perceptions of most of the regular participants in this guardianship system” (including lawyers and judges), who place value on keeping the guardianship process “simple, friendly, inexpensive, and available to all who need its protections”, and the “insights of those who have invested effort in studying the working of the guardianship system.”97 Wright concludes that this disconnect is “one probable source of the difficulty in making actual guardianship practice conform to legislative reforms.”98 Leslie Salzman, also writing in the United States, has identified the “judicial habit or culture of entering broad orders, the additional time and effort required to conduct a meaningful assessment of the individual’s “capacities” together with the practicality of broad guardianship orders” as reasons for this persistence (“the entry of a broad order both avoids confusion about the scope of the 95 See the discussion in this chapter under the heading “2.2.1 Adult guardianship legislation”. 96 Wright, supra note 79 at 350, referring to the similar wave of “modernizing” legislation in the United States. Wright provides a useful (if brief) historical account of adult guardianship legislative reform in the United States at 352-353. 97 Wright, ibid., at 352. 98 Ibid. Chapter 2 38 guardian’s authority and the need for future proceedings to expand a more limited order.”)99 Doug Surtees’ examination of 446 guardianship applications in Saskatchewan between 2001, (when assisted-decision making legislation became effective) and 2008 concluded that “the vast majority of orders granted under the 2001 legislation remain virtually plenary orders,” despite the fact that section 14(2) of Saskatchewan’s Adult Guardianship and Co-decision-making Act prohibits a court from making such an order “unless alternative ways to assist the adult in making decisions with respect to matters relating to his or her person, including less intrusive forms of support or assistance in decision-making, have been tried or carefully considered.”100 Surtees concludes that there are only “two plausible explanations for the finding that the overwhelming majority of Saskatchewan guardianship orders, granted under the current legislation, appear to be crafted as virtually plenary orders”: The first explanation is that in the overwhelming majority of cases, guardians continue to request, and courts continue to grant, orders that are unnecessarily plenary. If this is so, it is contrary to the legislation and the principles which are to guide its interpretation and administration. The specific principle being violated is the "least restrictive order that is sufficient to meet the adult's need" principle, although there is overlap with other principles as well. Indeed, if this explanation is correct, one must conclude that the legislation is not being correctly administered and that the sections of the legislation limiting the court's power to make orders are not being complied with. Perhaps one cause of this situation is a lack of knowledge on the part of the bench and the bar. Perhaps the built-in financial incentive applicants have in acquiring broader orders, likewise, plays a causal role. After all, applicants who are required to obtain successive orders will face increased transaction costs. The other possible explanation is that the orders that are granted, despite their tendency to be virtually plenary orders are, in fact, the orders that are needed. It might be the 99 Leslie Salzman, Rethinking Guardianship (Again): Substituted Decision Making as a Violation of the Integration Mandate of Title II of the Americans with Disabilities Act (Legal Studies Research Paper Series, Cardozo Law School, 2009) [Cardoza Legal Studies Research Paper No 282] at 294; Lawrence A Frolik, “Guardianship Reform: Where the Best is the Enemy of the Good” (1998), 9:2 Stan L & Pol’y Rev 347; Lawrence A Frolik “Promoting Judicial Acceptance and Use of Limited Guardianship” (2002) 31:3 Stetson L R 735. 100 Surtees, supra note 23 at 122. Chapter 2 39 case that these almost all-inclusive orders are the least restrictive orders that are sufficient to meet the adults' needs. If this explanation is correct, we have a separate problem. Outside of traumatic accident or acute medical events, loss of capacity typically does not occur all at once. We also know, however, that a great number of people with diminished capacity experience a diminishing of that capacity over time. Therefore, if the virtually plenary orders are appropriate, it must be the case that applicants are unnecessarily waiting too long.101 A third possibility may be the usefulness of plenary substitute decision-making (as opposed to shared or supported decision-making or substitute decision-making that is limited in scope) in relation to both the physiological nature of dementia as a progressive disease (with the rate of progress generally unpredictable and the identification of limited decision-specific abilities in the :shifting sands” of dementia problematic) and the significance of guardianship as a means of over-riding mere choice in the earlier stages of dementia. 2.6 The supported decision making paradigm and Article 12 of the Convention on the Rights of Persons with Disabilities The guardianship reform movement, while refining the guardianship model of the late 19th and early 20th centuries, did not substantively change its essential premise: that guardianship is a response to physiological mental impairment, whether defined as “mental infirmity” or impaired mental capacity (the cognitive ability to carry out processes of decision-making). The supported decision-making paradigm described below represents a more fundamental break from this model. The emergence and development of the supported decision-making paradigm is associated with Article 12 of the Convention on the Rights of Persons with Disabilities102 and, in particular, the 101 Ibid at 126. 102 See Nina A Kohn, Jeremy A Blumenthal & Amy T Campbell, “Supported Decision-Making: A Viable Alternative to Guardianship” (2013) 117:4 Penn St L Rev 1111; the Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3, art 12 (entered into force 3 May 2008), itself is silent on “decision-making” of any kind. The General Comment (infra note 103) has interpreted Article 12 as effectively abolishing substitute decision-making of any kind (including guardianship) and creating an obligation in the part of the state to adopt and provide support for supported decision-making. Chapter 2 40 interpretation of Article 12 by General Comment #1 (issued by the UN Committee on the Rights of Persons with Disabilities, the body charged with interpreting the Convention).103 Article 12 (“Equal recognition before the law”)104 provides as follows: 1. States parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law 2. States parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life 3. States parties shall take appropriate measures to provide access to persons with disabilities to the support they may require in exercising their legal capacity 4. States parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free from conflict of interest and undue influence, are proportional and tailored to the persons circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests 5. Subject to the provisions of this Article, States parties shall take all appropriate and effective measures to 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, 103 CRPD, General Comment No. 1 (2014), 11th Sess, adopted 11 April 2014, UN Doc C/GC/1, at para 26, online: <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G1403120.pdf? OpenElement> [CRPD, General Comment No. 1]. The General Comment is provides an “authoritative, if not binding interpretation”; See Wayne Martin et al, “Achieving CRPD Compliance: Is the Mental Capacity Act of England and Wales Compatible with the UN Convention on the Rights of Persons with Disabilities? If Not, What Next?” (2015) Report Submitted to the UK Ministry of Justice, online: <http://repository.essex.ac.uk/13624/1/EAP-Position-Paper-FINAL-copy.pdf>. 104 GA Res 61/106, 61st Sess, Supp No 49, UN Doc A/RES/61/106 (2006). Chapter 2 41 mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property The General Comment has interpreted Article 12 as requiring the abolition of mental capacity as the basis of legal incapacity, stating that parties to the Convention must “review the law allowing for guardianship and trusteeship, and take action to develop laws and policies to replace regimes of substitute decision-making by supported decision-making, which respects the person’s autonomy, will and preferences.” The Comment distinguishes between ideas of “legal” and “mental capacity” as follows: Legal capacity refers to the ability to hold rights and duties (legal standing) and to exercise those rights and duties (legal agency). It is the key to accessing meaningful participation in society. Mental capacity refers to the decision-making skills of a person, which naturally vary from one person to another and may be different for a given person depending on many factors, including environmental and social factors… Under article 12 of the Convention, perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity.105 “Mental capacity” is defined further in the Comment as “highly controversial”, “not, as is commonly presented, an objective, scientific and naturally occurring phenomenon” but “contingent on social and political contexts, as are the disciplines, professions and practices which play a dominant role in assessing mental capacity.”106 The General Comment defines Article 12 as “a basic general principle of human rights protection and… indispensable for the exercise of other human rights… [and] the general principles of the Convention”: respect for the inherent dignity, individual autonomy - including the freedom to make one’s own choices-, and independence of persons; non-discrimination; full and effective participation and inclusion in society; respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; equality of opportunity; accessibility; equality between men and women; 105 CRPD, General Comment No. 1, supra note 103 at para 13. 106 Ibid at para 14. Chapter 2 42 and respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.107 At the conceptual core of the supported decision-making paradigm is the understanding that all persons are capable of making decisions expressing their will and preference, thereby retaining legal capacity and maximal autonomy, so long as they receive the appropriate support.108 In this way, the supported decision-making paradigm is conceptually of-a-piece with the social disability model109 locating “disability” in the failure of the social world to accommodate impairments and/or to exacerbate the impact of impairment by creating barriers of different kinds (including legal barriers). From a social disability perspective, the disability of blindness (for example) is a consequence of a social world that has been constructed for the benefit of sighted persons without taking into account the situation and needs of persons without sight. Disability is “something imposed on top of our impairments by the way we are unnecessarily isolated and excluded from full participation in society.” 110 Re-arrangement of the social world to accommodate the impairment of non-sightedness, for example, would resolve the disability of blindness (without curing the impairment of non-sightedness); without disability, the impairment of non-sightedness would become mere difference, neither good nor bad. The social creation of disability is therefore conceptualized as a form of discrimination and persons experiencing disability are “an oppressed group in society”111 analogous to other oppressed groups. Within this conceptual framework or paradigm, law has a crucial role to play as a mechanism for 107 Ibid at para 4. 108 Piers Gooding, “Navigating the Flashing Amber Lights of the Right to Legal Capacity in the United Nations Convention on the Rights of Persons with Disabilities: Responding to Major Concerns” (2015) 15:1 Hum Rts L Rev 45 (“[s]upported decision-making refers to a decision made by a person, on his or her own behalf, with support from others in order to exercise legal capacity” at 51). 109 Union of the Physically Impaired Against Segregation, Fundamental Principles of Disability (London: Union of Physically Impaired Against Segregation, 1976) (defining disability as “the disadvantage or restriction of activity caused by a contemporary social organization which takes little or no account of people who have physical impairments and thus excludes them from participation in the mainstream of social activities”); Michael Oliver, Social Work with Disabled People (Basingstoke: Macmillan, 1983); Michael Oliver “The Social Model of Disability: Thirty Years On” (2013) 28:7 Disability & Society 1024. 110 Michael Oliver, Understanding Disability: From Theory to Practice (Basingstoke: Macmillan, 1996) at 22. 111 Ibid. Chapter 2 43 resolving disability (as opposed to impairment) through the reform of social structures, thereby ameliorating discrimination.112 The social-disability model was developed by and for young and middle aged persons with physical disabilities, and the model has been criticized for failing to take account of cognitive differences (i.e. differences in the performance of thinking processes).113 Nevertheless, the theoretical framework of the social disability model is integral to the supported decision making paradigm: that decision-making making disability is caused by the failure to provide the necessary social support and by the active removal of the opportunity to develop decision-making skills where a substitute decision-maker is appointed. The UN Office of the High Commissioner of Human Rights has defined supported decision making as “the process whereby a person with a disability is enabled to make and communicate decisions with respect to personal or legal matters.”114 The UN Committee of the Rights of Persons with Disabilities has provided the following, more fulsome definition: Supported decision-making can take many forms. Those assisting a person may communicate the individual’s intentions to others or help him/her understand the choices at hand. They may help others to realize that a person with significant disabilities is also a person with a history, interests and aims in life, and is someone capable of exercising his/her legal capacity… The individual is the decision maker; the support person(s) explain(s) the issues, when necessary, and interpret(s) the signs 112 Eaton v Brant-County Board of Education,  1 SCR 241; Eldridge v British Columbia (Attorney General),  3 SCR 624; McColl et al, “People With Disabilities Under the Charter: Disability Rights at the Supreme Court of Canada Under the Charter of Rights and Freedoms” (2016) 5:1 Can J Disability Studies 183. The Americans With Disabilities Act, 42 USC 12101 et seq (1990), is also premised on this idea. 113 See Tom Shakespeare & Nicholas Watson, “The Social Model of Disability: an Outdated Ideology?” in Barbara M Altman & Sharon N Barnartt, eds, Exploring Theories and Expanding Methodologies: Where We Are and Where We Need to Go, vol.. 2 (Bingley: Emerald Group Publishing, 2001) 9. 114 UN General Assembly, OHCHR, Tenth session Agenda item 2, ‘ANNUAL REPORT OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS AND REPORTS OF THE OFFICE OF THE HIGH COMMISSIONER AND THE SECRETARY-GENERAL: Thematic Study by the Office of the United Nations High Commissioner for Human Rights on enhancing awareness and understanding of the Convention on the Rights of Persons with Disabilities’ Distr. GENERAL A/HRC/10/48 26 January 2009. Chapter 2 44 and preferences of the individual. Even when an individual with a disability requires total support, the support person(s) should enable the individual to exercise his/her legal capacity to the greatest extent possible, according to the wishes of the individual.115 Michael Bach and Lana Kerzner have defined supported decision-making in terms of facilitating an individual’s capability (referring to a person’s ability to function or “get things done”). drawing on the conceptual framework developed by Amartya Sen. Within this framework, “being capable” or “having capabilities” is a “combination of what we refer to as individual decision-making ‘abilities’ and of decision-making ‘supports’ and accommodations.”116 “Different decision-making abilities” can therefore “be turned into decision-making capabilities with appropriate decision-making supports and accommodations sufficient to exercise legal capacity.”117 Individual decision making” refers to “getting individual decisions made consistent with one’s will and/or intention” with supports and accommodations as required.118 Certain situations, Bach and Kerzner suggest, may require a “temporary ‘facilitated’ decision-making legal status… while personal relationships can be built that would enable the person’s will and/or intention to become known by others as the basis for decision making.”119 Robert Gordon has observed that the concept of decision-making as an inter-dependent activity more accurately reflects the way all people make decisions in their “everyday” lives, and that “truly independent decision-making is a myth.”120 In this sense, supported decision-making has 115 UN Committee on the Rights of Persons with Disabilities “Chapter Six: From provisions to practice: implementing the Convention, Legal Capacity and Supported Decision-Making” in UN Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities (Geneva, 2007). https://www.un.org/development/desa/disabilities/resources/handbook-for-parliamentarians-on-the-convention-on-the-rights-of-persons-with-disabilities/chapter-six-from-provisions-to-practice-implementing-the-convention-5.html 116 Michael Bach & Lana Kerzner A New Paradigm for Protecting Autonomy and The Right to Legal Capacity (2010) Law Commission of Ontario at 21. 117 Ibid., at 22. Bach and Kertzner set out 6 categories of support: life-planning; independent advocacy; communicational and interpretative; representational; relationship-building; and administrative. Ibid., at 72. 118 Ibid. 119 Ibid., at 24. 120 Gordon, supra note 85 at 65. “In complex, post-industrial and postmodern societies there is a high level of dependency upon the skills, acumen, ability, and knowledge of others when a variety of decisions are to be made…. Assistance is sought because the adult faces a decision (or decisions) that require both an understanding and an appreciation of the consequences of a choice or option that presents itself, or because he or she needs a skilled agent to carry out certain tasks (e.g., the completion of an income tax return). Most adults, when asked to reflect upon normal decision-making practices in their daily lives, usually realize the extent to which they engage in inter dependent decision-making. Importantly, this interdependence is not seen as indicative of mental incapability.” Chapter 2 45 been described as reflecting and consistent with a conceptualisation of autonomy as relational (i.e. exercised through our relationships with others) rather than the idea of autonomy as equivalent to independence and self-reliance.121 We all need support in relation to some kinds of decisions, but some of us need more support with a greater number of decisions. Gordon notes concerns that formal appointment of a supporting decision-maker may have a detrimental effect on organic informal relationships of support, “potentially “disrupt[ing] existing and effective networks of support that surround the affected adult.”122 Additional “problems and criticisms” identified by Gordon include the inherent difficulty of the task (supporting and advising appropriately without interfering), the slide into making decisions for the other person on the one hand or neglecting to act on the other, and the potential for abuse and exploitation.123 Special concerns arise where individuals are not embedded in supportive relationship networks from whose ranks a suitable assistant/supporting decision-maker could be drawn (“who is to provide the assistance in the absence of family and friends?”)124 Can it be assumed that family, friends or “community” will rally around sufficiently to make meaningful and (admirable) aspirations for reliance on community-based ideas of “supported” decision-making, or should civil society (ie through mobilising volunteer support) or the state (such as through funding and co-ordinating “community visitor/guardian” schemes) supply the shortfall for the friendless or isolated? If tailor-made personal arrangements are no longer viable due to the advanced age or social isolation of the person, should this trigger access to more impersonal and bureaucratic default guardianship from state agencies such as Public Trustees (or offices of the Public Advocate), under public guardianship arrangements not uniformly provided for in many jurisdictions outside Australia? Or is this state of affairs the moral equivalent of having been unlucky in life, with lack of support being one’s “lot in life” and thus not something to be remedied? None of these questions have easy answers.” 125 121 See, Piers Gooding “Supported Decision-making: A Rights-based Disability Concept and Its Implications for Mental Health Law” (2012) 20(3) Journal of Psychiatry, Psychology and Law 431. 122 Ibid at 73. 123 Ibid at 74-75, 124 Ibid at 74. 125 Ibid. See also, Carney, Guardianship, Citizenship, & Theorizing Substitute-decisionmaking Law, supra note 81 at 11. Chapter 2 46 Both Gordon and Terry Carney (writing in Australia) note the work of advocacy organizations within the community living movement (working with and on behalf of persons with intellectual/developmental disabilities) to develop support networks for adults without family and friends “willing and able to provide support and assistance.”126 These organisations have driven and dominated the development of supported decision making generally (unlike the guardianship reform movement described above) to the exclusion of other groups “particularly the elderly.”127 Reflecting this focus, Manitoba’s Vulnerable Persons Living With a Mental Disability Act, the first Canadian legislation providing for assisted/supported decision making, is limited in application to persons with intellectual/developmental disabilities (specifically excluding persons developing mental disabilities later in life), repealing and replacing the old “mental retardate” provisions of the Manitoba Mental Health Act.128 The idea of developing decision-making skills with support is certainly more applicable in relation to persons with developmental disabilities than the continuing loss of decision-making skills, together with other thinking skills (judgment, comprehension, remembering, etc.), in the context of dementia in old age. The “family and friends” support networks Gordon describes will also, generally, take a very different form in the latter context, i.e. adult children and (themselves aging) spouses as opposed to parents and siblings. There is no equivalent to the services provided through Community Living organisations (supported group homes, for example) for persons with dementia in old age. In accordance with this context, the literature on supported decision-making has primarily focused on the needs of persons with developmental disabilities (and the particular problems caused by substitute decision-making in that context). Critiques of the supported decision-making paradigm (supported decision making as a complete replacement for guardianship) should not be confused with criticism of supported decision-making itself. Those critiques are directed to the proposed disappearance of both adult 126 Gordon, supra note 85 at 74; Carney, Guardianship, Citizenship, & Theorizing Substitute decision-making Law, ibid. 127 Gordon, supra note 85 at 72. Gordon also refers to McKenzie, Tod, & Yellen’s work on “[c]ommunity-based intervention strategies for cases of abuse and neglect of seniors” as recognising the potential of assisted decision-making for the elderly” (in this context). Pearl McKenzie, Linda Tod & Penny Yellen, “Community-based Intervention Strategies for Cases of Abuse and Neglect of Seniors” in Michael J MacLean, ed, Abuse and Neglect of Older Canadians: Strategies for Change (Toronto: Thompson Educational Publishing, 1995) 17. 128 Gordon, supra note 85 at 67. Chapter 2 47 guardianship and mental capacity assessment, described by Kayess and French as “bordering on a complete denial of the instrumental limitations associated with cognitive impairments.”129 Peter Bartlett has suggested that the effectiveness of Article 12 is limited by its failure to provide an alternative method of evaluation that would determine when and what kinds of supports are necessary.130 Nor does the Convention provide a mechanism for responding to a situation where an individual rejects support that she or he objectively needs.131 Freeman and others have argued that removal of mental capacity as a legally meaningful concept would effectively “violate” other rights “expressed and asserted” in the CRPD including the right to enjoyment of the highest attainable standard of health, the right to liberty, and the right to justice.132 Noting the presumption of capacity in law and medicine, the authors conclude “that where it is proven in a given case thorough psychiatric assessment that the person does not have decision-making capacity in a particular domain (for example with respect to hospital admission, treatment, or financial transactions), at a particular time, the initial legal presumption must also be reassessed.”133 Leslie Salzman has described Article 12 as a “paradigm shift” through its creation of a “true presumption of legal capacity”, calling for a “more nuanced approach towards determining decision-making status and greater reflection on how to assist an individual within the decision-making process.”134 Kristin Booth Glen describes this new “paradigm” as “insist[ing] on the full legal capacity of every person with intellectual disabilities… do[ing] away with substituted decision-making in favour of society’s obligation to provide appropriate supports to permit everyone to make his or her own decision” (as opposed to the “old idea of incapacity as an illness or defect that renders the person suffering it to an object of charity and protection, subject to plenary guardianship based on best interests which constrains her personal life and the control 129 Rosemary Kayess & Phillip French, “Out of Darkness and into Light? Introducing the Convention on the Rights of Persons with Disabilities” (2008) 8:1 Human Rights L Rev 1 at 1. 130 Peter Bartlett “The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law” (2012) 75:5 Mod L Rev 752 at 762. 131 Ibid. 132 Ibid. 133 Melvyn Colin Freeman et al, “Reversing Hard Won Victories in the Name of Human Rights: A Critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities” (2015) 2:9 Lancet Psychiatry 844 at 845. See also George Szmukler, “UN CRPD: Equal Recognition Before the Law” (2015) 2:11 Lancet Psychiatry 29. 134 Salzman, supra note 99 at 285. Chapter 2 48 of her property.)”135 A true shift (in the Kuhnian sense) has not occurred, however; adult guardianship, and the supported decision-making paradigm, remain stalled at the cross-roads. On one hand, the gaps in the supported decision-making paradigm will continue to preclude a paradigm shift in its favour, as evidenced by Canada’s ratification of the CRPD in 2010 with a reservation regarding Article 12 that would allow for the continuation of substitute decision making (including adult guardianship).136 On the other, the current adult guardianship model is problematic for the reasons identified in this Chapter (relating to the experience of persons with intellectual and developmental disabilities); special problems also arise in the context of dementia in old age, as examined in Chapter 4. 2.7 Dementia At this most objective end of mental illness (that is, in the field of “organic” dementias) it turns out there is no hard scientific boundary between disease and normality. Lines can be drawn, but their exact location is a matter of evaluative judgment based on correlations between neuro-pathology and symptoms and signs. But which symptoms and signs? How much forgetfulness is pathological? What counts as normal aging?137 The World Health Organization defines dementia as a “syndrome, usually of a chronic or progressive nature, in which there is deterioration in cognitive function (i.e. the ability to process thought) beyond what might be expected from normal ageing.”138 These changes in thinking 135 Kristin Booth Glen, “Changing Paradigms: Mental Capacity, Legal Capacity Guardianship, and Beyond” (2012) 44:1 Colum HRLR 93 at 98. See also Nandini Devi, Jerome Bickenbach & Gerold Stucki, “Moving Towards Substituted or Supported Decision-making? Article 12 of the Convention on the Rights of Persons with Disabilities” (2011) 5 European J Disability Research 249; Terry Carney, “Supported Decision-Making for People with Cognitive Impairments: An Australian Perspective?” (Legal Studies Research Paper Series 4, University of Sydney Law School, 2015) [Sydney Law School Research Paper No 15/03] 37. 136 See, Stephen Hoffman, Lathika Sritharan & Ali Tejpar, “The UN Convention on the Rights of Persons With Disabilities and Its Impact on Mental Health Law and Policy in Canada” in Jennifer Chandler & Colleen Flood, eds, Law and Mind: Mental Health Law and Policy in Canada (Toronto: LexisNexis, 2016) 53 at 64; Sheila Wildeman “Protecting Rights and Building Capacities: Challenges to Global Mental Health Policy in Light of the Convention on the Rights of Persons With Disabilities” (2013) 41:1 JL Med & Ethics 48. 137 Julian Hughes, Stephen Louw & Steven R. Sabat, eds., Dementia: Mind, Meaning and the Person (Oxford: Oxford University Press, 2005). 138World Health Organization “Dementia” (Fact Sheet) April 2016), online: http://www.who.int/mediacentre/factsheets/fs362/en/ See also, Alzheimer Society of Canada Rising Tide: The Chapter 2 49 processes are “commonly accompanied, and occasionally preceded, by deterioration in emotional control, social behaviour, or motivation.”139 The “ability to process thought” can be ascertained only through a person’s performance of thinking processes and the dementia diagnosis, accordingly, turns of the evaluation of that performance. The “signs and symptoms of dementia” may be caused by several underlying physiological phenomena including Alzheimer’s disease, vascular dementia, frontotemporal lobe dementia, Lewy Body disease, Creutzfeldt-Jakob disease, stroke and prolonged alcohol abuse. The diagnosis of dementia does not depend on a conclusive identification of its source, however; indeed, the cause of a person’s dementia is more likely to remain theoretical during her or his life. Diagnosis of probable cause is nevertheless an important element of the dementia diagnosis, distinguishing treatable symptoms resembling dementia (delirium caused by infection, for example) from the “chronic and progressive” syndrome of dementia. Dementia is not exclusive to the old, nor is dementia an inevitable and universally experienced characteristic of old age. The great majority of persons diagnosed with dementia are old however (between 90 and 98%), and the likelihood of developing dementia increases exponentially with age (falling off around the age of 90).140 This demography of dementia- the connection between old age and changes in thinking and judgment (particularly memory)- is “probably as old as mankind itself” and was observed by the ancient Egyptians, Greeks and Romans.141 Despite this association, evidence indicates that the ancients did not understand dementia to be an inevitable feature of the long life.142 References to old age in the literature of the ancient Greeks and Romans describe a heterogeneous and multi-faceted experience, including both positive and Impact of Dementia on Canadian Society (2010) http://alzheimer.ca/sites/default/files/files/national/advocacy/asc_rising_tide_full_report_e.pdf 139 Ibid. 140 According to a report released in 2012 by the World Health Organisation and Alzheimer’s Disease International between 90 per cent and 98% per cent of all cases of dementia are diagnosed after the age of 65 ((Dementia: A Public Health Priority http://www.who.int/mental_health/publications/dementia_report_2012/en/). A report published by the Alzheimer’s Society UK in 2014 (Dementia UK Update https://www.alzheimers.org.uk/sites/default/files/migrate/downloads/dementia_uk_update.pdf) estimates that early onset (before age 65) dementia accounts for 5.2% of all persons diagnosed with dementia in the UK, and that within that group dementia increases “sharply” between the ages of 60 and 64. The Rising Tide Report (ibid) estimates that between 93 and 95% of persons developing Alzheimer’s disease are ‘late-onset” are age 65 or over. 141 Francois Boller & Margaret M. Forbes “History of Dementia and Dementia in History: An Overview” (1998) 158(2) Journal of the Neurological Sciences 125. 142 See Boller & Forbes, ibid., at 3 referring to Cicero in De Senectute Chapter 2 50 negative aspects, wisdom and peace alongside physical and possibly mental decline; as Seneca the Younger wrote, “[t]here is not one type of old age for all people.”143 The possibility of dementia in old age was nevertheless (then as now) a subject of dread, as evidenced in the following passage from the Bacchides (written by the Roman playwright Plautus in 820 BC): Whom the gods hold dear die young, with strength and sense and mind intact. If any god loved him he should have died more than ten years ago or more than twenty. He walks a bane upon the earth: no mind, no sense, as useful as a rotten mushroom.144 The great legal reformer Solon (560-630 BC), recognised old age (along with physical pain, violence, drugs, and the “persuasion of a woman”) as a source of impaired judgement and his legal code (replacing the “Draconian” Code of Draco) provided that a man could no longer bequeath his property to whoever he wished if his judgment was affected by old age. 145 Laws in both ancient Greece and Rome also enabled a son to bring a lawsuit against a father “in order to stop him from squandering away his fortune.”146 According to Boller and Forbes, dementia in old age “does not seem to have inspired much interest or concern” in the middle ages147 As in ancient times, dementia appears to have been understood as an unfortunate but uncontrollable and inevitable fate for some (if not all) in old age (Boller and Forbes quote the philosopher Roger Bacon as expressing the view that “senility is a consequence of the original sin.”)148 Shakespeare’s tragedy King Lear provides a famous dramatic account of dementia in old age: a “tale told by an idiot, sound and fury signifying nothing.” The idea of “senile dementia” (dementia in old age) as a disease of the mind emerged in the 19th century, in particular through the “landmark” work of Jean Etienne Esquirol. Esquirol, writing 143 Attributed to Consolation ad Marciam, 1 AD; Tim Parkin “The Ancient Greek and Roman Worlds” in Pat Thane, ed. The History of Old Age (London: Thames & Hudson, 2005) 31 at 31. 144 Ibid.at 74. 145 Ibid. 146 Karen Cokayne Experiencing Old Age in Ancient Rome (London: Routledge Classical Monographs, 2003) at 73. Cokayne writes that similar legal procedures existed in Ancient Rome although, in practice the “handing over of affairs” is thought to have occurred amicably without the need for legal action. 147 Boller & Forbes supra note 141 at 5. 148 Ibid. Use of the term “dementia” is identified by Boller and Forbes as emerging in France in 1380. Chapter 2 51 in 1838 (in a treatise titled Mental illness as considered in medical, hygienic, and medico-legal reports), described “senile dementia” as “a cerebral disease caused by an impairment of sensibility, intelligence and will”: A demented man has lost the goods he used to enjoy; he is a wealthy person turned poor. An idiot [referring to persons that would today be referred to as mentally or intellectually disabled], by contrast, has always been unfortunate and poor.149 In addition to “senile dementia”(dementia caused by old age), Esquirol enumerated several other possible sources of “impairment” including excessive drinking and eating, head injury, poverty, unhappy love, unfulfilled ambitions, excessive masturbation, fears, domestic problems, political upheaval, mercury abuse, syphilis, apoplexy, paralysis, mania, hemorrhoids, menstrual disorders, and difficulties following birth.150 Around this same time, the pioneering French psychiatrist (and father of forensic psychiatry) Etienne-Jean Georget identified the causes of dementia as “weakening, ageing or associated disease,” and categorised dementia and “idiota” as the “only two irreversible conditions in psychiatry.”151 The idea of dementia as a disease or disorder developed further with the discovery of Alzheimer’s disease in the early 20th century. Alzheimer’s patients were remarkable precisely because they were not old, yet experiencing problems of behaviour and performance that closely resembled senile dementia; this phenomenon became known as Alzheimer’s disease. Alzheimer’s disease was first used to describe persons diagnosed with dementia in old age (i.e. those previously described as experiencing senile dementia) in a “landmark editorial” by Dr Robert Katzman in 1976.152 By the latter part of the 20th century Alzheimer’s disease had become “almost synonymous with dementia, virtually replacing the previous, less obviously 149 Ibid., at 4. Boller & Forbes describe Esquirol’s work as a “great leap forward” in the study of dementia.” 150 Ibid., at 126. 151 Leonardo Caixeta et al “The development of the dementia concept in the 19th century” (2014) 72 (7) Arq Neuropsiquiatr 564 at 566 citing Georget EJ. De la Folie. Considérations sur Cette Maladie. Paris, Crevot, 1820. 152 Robert Katzman “The Prevalence and Malignancy of Alzheimer’s Disease: A Major Killer” (1976) 33(4) Neurology 217. See discussion, Murna Downs “Dementia in a Socio-Cultural Context: An Idea whose Time Has Come” (2000) 20(3) Aging and Society 369 at 370; Boller & Forbes supra note 141; Robert Katzman, Robert B. Terry & Katherine Bick Alzheimer’s disease: senile dementia (New York: Raven Press, 1978); Patrick Fox “From Senility to Alzheimer’s Disease: The Rise of the Alzheimer’s Disease Movement” (1989) 67(1) The Milbank Quarterly 58. See also, DR George, PJ Whitehouse, J Ballenger “The evolving classification of dementia: placing the DSM-V in a meaningful historical and cultural context and pondering the future of “Alzheimer's” (2011) 35(3) Culture Medicine & Psychiatry 417; Thomas Kitwood Dementia reconsidered: the person comes first (Buckingham: Open University Press, 1997) at 22. Chapter 2 52 medical term, senile dementia.”153 Thomas Kitwood has described this process as the “Alzheimerization” of dementia154 through “a series of pragmatic decisions both financial and political”: Through the corralling of research monies and successful lobbying the Alzheimer’s movement (an alliance of scientists, government representatives, members of the public and the media) two processes were established. First, Alzheimer’s became virtually synonymous with dementia, virtually replacing the previous, less obviously medical term senile dementia. Cognitive decline was therefore no longer to be seen as a normal part of aging but as a pathological process. Second, it helped to extend the boundaries of Alzheimer’s by removing age as a primary criterion of disease. Originally, a distinction was made between senile and pre-senile dementia, depending on the age of the patient.155 Dementia has also been defined in recent years to include criteria relating to functioning in day-to-day life; Prof. Elisa Ash defines dementia as a “decline in cognitive function, such as loss of memory, judgment, language, complex motor skills and other intellectual functions leading to a decline in independent daily functions.”156 Noting this trend, Julian C. Hughes has suggested that the “standard medical model nowadays” in clinical practice is “probably biopsychosocial”; “it is difficult to think of clinicians (as opposed to pure neuro-scientists) who would be inclined to think of the person with dementia solely in the technical terms of neuro-psychology (and even pure neuroscientists, I suspect, do not think in such terms when they think of persons with dementia).”157 For the majority of political and legal actors,158 and for the general public, however, the rhetorical discourse of dementia as dread disease (constructed around a simplified version of the medical model) remains the meaning of dementia. This particular idea of dementia as a disease of the self- a “living death” in which the self disappears, and the person 153 Clive Baldwin & Andrea Capstick, eds., Tom Kitwood on Dementia: A Reader and Critical Commentary (Maidenhead, England: Open University Press, 2007) at 7. 154 Ibid. 155 Ibid. 156 Elissa Ash “What is Dementia?” in Charles Foster, Israel Doron, and Jonathan Herring eds. The Law and Ethics of Dementia (Oxford: Hart Publishing, 2014) 3 at 3. 157 Julian C. Hughes. Thinking Through Dementia (Oxford, UK: Oxford University Press, 2011) at 121 158 See, for example, Act respecting a national strategy for Alzheimer’s disease and other dementias” SC 2017 c. 19. Chapter 2 53 becomes a kind of zombie- creates a high level of social stigma around the disorder, and the person labeled with it.159 2.8 Conclusions In this Chapter, I have explored the development of adult guardianship in Anglo-Canadian law, from the feudal manor to the Convention on the Rights of Persons with Disabilities. As the discussion in this Chapter has shown, “guardianship” has no fixed or inevitable meaning. The guardianship response has evolved from the pre-common law “mists of time” to the present in a way that is of-a-piece with the wider, social, legal and political context in which that response has been situated. We have seen how the scientific/objective measurement of mental capacity, conceptualised as a protector of autonomy in the adult guardianship reform movement, has been re-conceptualised as discriminatory and destructive of autonomy in the supported decision making paradigm. At the same time, critics of the supported decision-making paradigm contend that it fails to meet the needs, and protect the rights, of the persons it would defend. Those points of failure or gaps have a particular application to the context of dementia in old age, which has been generally ignored in the supported decision making discourse (although guardianship is used most frequently in that content). Together, these developments have created what Kuhn would call a paradigm revolution (the precursor to a paradigm shift). 159 See, Elizabeth Peel “The living death of Alzheimer’s” v “Take a walk and keep dementia at bay”: representations of dementia in print media and carer discourse” (2014)36(6) Sociology of Health and Illness 885. Chapter 3 54 Chapter 3. Research Methodology: Pragmatic Inquiry and the Epistemology of Philosophical Pragmatism 3.1 Introduction A research methodology is a theory about the nature and purpose of the research exercise that provides the conceptual framework for a particular research study. The research method chosen should generate the kind of information or knowledge that will best achieve this purpose. The choice of methodology is rooted in the epistemology, or theory of knowledge (“the nature of knowledge and its justification”),1 that the researcher brings to the study. The researcher’s epistemology or understanding of what knowledge is, and how it is generated, underlies the choice of methodology. The methodology used in this research is pragmatic inquiry. That methodology is rooted in the epistemological framework of philosophical pragmatism, as developed, in particular, by the American pragmatist philosopher John Dewey. The first part of this chapter describes the epistemology of classic American philosophical pragmatism and the methodology of pragmatic inquiry. The second part of this chapter provides an over-view of traditional legal pragmatism and the pragmatic turn in bioethics, situating the approach used in this study as a distinct legal research methodology. 3.2 Epistemology and methodology: pragmatism and pragmatic inquiry This section sets out the theory of knowledge and methodology of pragmatic inquiry developed by the classic American philosophical pragmatists (Charles Saunders Pierce, William James James, and John Dewey). The philosophical pragmatism described below is distinct from the “legal pragmatism” associated with Oliver Wendell Holmes and the “freestanding” or “brass-tacks” pragmatic turn within law and bio-ethics. These latter pragmatisms are disconnected from the core concerns of the philosophical pragmatists: the nature of knowledge and truth; the function of ideas accepted as truths in the social organisation of “environments” or fields of activity; the ways in which truths evolve/are constructed, or lose their truth status; and the role of pragmatic inquiry in that process, as a structured methodology through which truths can be tested 1 Thomas A Schwandt, Dictionary of Qualitative Inquiry, 2d ed (Thousand Oaks: Sage, 2001) 71. Chapter 3 55 (in response to “doubt”) and new organizing ideas developed (ideas which may subsequently become truths if and when they are adopted on a widespread social level as “habitual ways of thinking”). The self-described legal pragmatist Richard Posner described legal pragmatism as “clearing the underbrush” by dispelling the fictions of legal formalism (the idea that legal actors are controlled by abstract rules and principles) “and leav[ing] it to others to plant the forest” (a job that Posner would give to law and economics theorists).2 Dewey’s philosophical methodology of pragmatic inquiry, in contrast, is both descriptive and constructive, clearing the underbrush” and “planting the forest.” I contend that pragmatic inquiry, as a methodology rooted in the epistemology of philosophical pragmatism, is uniquely helpful in terms of understanding legal structures and legal problems and as a means of developing recommendations for law reform that is grounded in both principle and practice. The objectives of pragmatic inquiry align with the objectives of law reform: to locate and examine doubt, and to resolve that doubt by changing the legal framework as an “organizing idea” of the field of practice. The use of pragmatic inquiry as a legal research methodology is, therefore, one contribution of this research study. 3.2.1 Philosophical pragmatism: the classic American pragmatists The neo-pragmatist Richard Rortry famously described the classic American pragmatists William James and John Dewey as “waiting at the end of the road” which Foucault and other post-modernists were “currently travelling”.3 Like the post-modernists, the pragmatists rejected the essentialist account of truth, i.e. the idea that truths were “out there” waiting to be discovered and, once discovered, were immutable: what Rortry called the idea of truth as a “mirror of nature.”4 The post-modern understanding of truths as constructed through social practices (social constructionism)5 was presaged by the pragmatist philosophers, although they described that process in different terms and using different analogies or metaphors. The pragmatists differed from the post-modernists, however, in terms of both methodology (the methodology of pragmatic inquiry described infra) and objective. Where the objective of post-modernist or 2 Richard Posner, “What Has Pragmatism to Offer Law?” (1990) 63:6 S Cal L Rev 1653 at 1663, 1670. 3 Richard Rorty, Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982) at xviii. 4 Richard Rorty, Philosophy and the Mirror of Nature (Princeton: Princeton University Press, 1979). 5 Vivien Burr, An Introduction to Social Constructionism (London: Routledge, 1995) at 3-8. Chapter 3 56 social constructionist theorists is the de-construction of (apparently natural) truths, the objective of pragmatic inquiry is the re-construction of truths for the purpose of “remov[ing]… some specific trouble and perplexity.”6 Post-modernist deconstruction has been criticized on the basis of relativism and even nihilism; if no truths are true-er than others everything is allowed and order is arbitrary. The pragmatist philosophers, in contrast, believed that some ideas were (for a period of time) true-er than others; an idea was true or valid (truer in that moment than alternatives past and future) so long as it “succeeds in its office”, in Dewey’s words, by satisfactorily resolving “troubles and perplexities” in a way that is consistent with other truths. Where the truth of an idea becomes degraded or untenable- where the persons using or affected by that idea no longer believe in it as true- a new truth will emerge to take its place. The objective of pragmatic inquiry is to guide the construction of that new truth. 3.2.2 Philosophical pragmatism: anti-essentialism and the nature of truth [I]deas are not “out there” waiting to be discovered, but are tools- like forks and knives and microchips- that people devise to cope with the world in which they find themselves. They [the “founding fathers” of pragmatism] believed that ideas are produced not by individuals, but by groups of individuals- that ideas are social. They believed that ideas do not develop according to some inner logic of their own, but are entirely dependent, like germs, on their human carriers and the environment. And they believed that since ideas are provisional responses to particular and unreproducible circumstances, their survival depends not on their immutability but on their adaptability.7 The American philosophers Charles Saunders Pierce, William James, Oliver Wendell Holmes, and John Dewey are considered to be the “founding fathers” of classic American pragmatism.8 Despite areas of difference between them, these pragmatist philosophers were united in their rejection of what Dewey called a “spectator theory of knowledge” in which the individual, 6 John Dewey, Reconstruction in Philosophy (Boston: Beacon Press, 1948) at 156 [Dewey, Reconstruction in Philosophy]. 7 Louis Menand, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus, & Giroux, 2001) at 196. 8 See Menand, ibid. Chapter 3 57 standing outside of the world, comes to know that world and its essential reality through a process of passive surveillance.9 Richard Rortry described this essentialist account of truth as an extension of the scientific method to all human knowledge and “the conviction that natural science- facts about how spatio-temporal things worked- was all the Truth there was.”10 There is no essential reality-based truth in the pragmatist account. John Dewey described ideas as more or less “reliable, sound, valid, good, true” to the extent that they “succeed in their office” by “removing some specific trouble [emphasis added] and perplexity”:11 If ideas, conceptions, notions, theories, systems are instrumental to an active reorganization of the given environment, to a removal of some specific trouble and perplexity, then the test of their validity and value lies in accomplishing this work. If they succeed in their office, they are reliable, sound, valid, good, true. If they fail to clear up confusion, eliminate defects, if they increase confusion, uncertainty and evil when they are acted upon, then are they truly false. Confirmation, corroboration, verification lie in works, consequences. By their fruits ye shall know them.12 An idea may therefore be “true” in one context, as that idea is used for a particular purpose (“an active reorganization of the given environment” for the “removal of some specific trouble and perplexity”), yet “untrue” in another. An idea may also cease to be true, or become true. “Truth” William James wrote, “happens to an idea, it becomes true, it is made true by events. Its verity is in fact an event, a process: the process namely of its verifying itself, its-verification.”13 9 John Dewey, The Quest for Certainty (New York: Capricorn, 1960) at 193-194, cited in Cornel West, The American Evasion of Philosophy: A Genealogy of Pragmatism (Madison: University of Wisconsin Press, 1989) (“[t]heories which assume that the knowing subject, that mind or consciousness, have an inherent capacity to disclose reality, a capacity operating apart from any overt interactions of the organism with surrounding conditions, are invitations to general philosophical doubt.” at 90). 10 Thomas Grey, “Holmes and Legal Pragmatism” (1989) 41:4 Stan L Rev 786 at 789 [Grey, “Legal Pragmatism”), citing Richard Rorty, “Introduction: Pragmatism and Philosophy” in Richard Rorty, ed, Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982) xiii at xv. 11 Dewey, Reconstruction in Philosophy, supra note 6 at 156. 12 Ibid. 13 William James, Pragmatism (Cambridge: Harvard University Press, 1975) at 35 [James, Pragmatism], cited in West, supra note 9 at 65. Dewey coined the term “warranted assertibility” as a preferable, more accurate alternative to “truth” and “knowledge.” See also Larry A Hickman, Pragmatism as Post-Modernism: Lessons from Dewey (New York: Fordham University Press, 2007). Hickman has described this “cumbersome but descriptive phrase” as “pointing in two directions”: “Warranted” points backwards in time toward something that has been accomplished. What is warranted is the result of reflection that has been effective in the sense that some specific doubt or difficulty has been resolved. “Assertibility” points forward in time towards something yet to be done. What is assertible is Chapter 3 58 Dewey described the universe as one “whose evolution is not finished, of a universe which is still, in James’ term, ‘in the making,’ ‘in the becoming,’ of a universe up to a point still plastic.”14 In this way, the classic American pragmatism of the late 19th and early 20th centuries has been associated with the social and intellectual impact of Darwin’s theory of evolution; “truths” evolve in the way that an animal evolves in connection with the changing, total environment in which it is immersed, and the success or validity of evolutionary change is judged with reference to the enhancement of functional success as opposed to the relationship of change to any abstract category of the “real” or the “true.” Abstractions, while useful as a means of organizing (and thereby utilising) experience, should never be ascribed “a higher grade of reality.”15 The evolutionary nature of truth does not imply a state of continual uncertainty or questioning, however. To the contrary, the pragmatists insisted that most comfortable state for the human mind is one of repose or habits of thought. To be recognisable as true an idea must work or fit with existing truths, “so as ever to show a minimum of jolt, a maximum of continuity.”16 For this reason, James wrote, we will count a new idea as true if we can use it to assimilate a new experience to our old beliefs without disturbing them too much”:17 That new idea is truest which performs most felicitously its function of satisfying our double urgency. It makes itself true, gets itself classed as true, by the way it works; grafting itself then upon the ancient body of truth, which thus grows much as a tree grows by the activity of a new layer of cambium.18 something general, and therefore something potentially applicable to future cases that are relevantly similar to the one by means of which it was produced. Unlike the alleged knowledge… studies by most epistemologists… warranted assertibility is claimed to be neither certain not permanent. The best it can offer is a measure of stability in an otherwise precarious world.” at 207. 14 John Dewey, “The Development of American Pragmatism” in John Dewey, ed, Philosophy and Civilization (New York: Peter Smith Editions, 1968) at 24-25, cited in West, supra note 9 at 91. 15 Brian Z Tamanaha, Realistic Socio-Legal Theory (Oxford: Clarendon Press, 1997) at 27, quoting William James, Pragmatism and the Meaning of Truth (Cambridge: Harvard University Press, 1975) at 275; See Grey, “Legal Pragmatism”, supra note 10 at 787, for Thomas Grey’s discussion of Oliver Wendell Holmes on the relationship between abstraction and legal pedagogy. 16 Ibid. 17 Margaret Radin, “The Pragmatist and the Feminist” (1990) 63 (6) S Cal L Rev 1699 at 1709. 18 James, Pragmatism, supra note 13 at 36, cited in Radin, ibid at 1709. Chapter 3 59 The ability to rely upon the truth of generally agreed-upon habitual thoughts also facilitates action, especially collective action (actions that require individuals to work together). Agreed-upon truths are essential to organizing social practices in a way that will achieve a particular objective.19 The “great mass” of habitual thoughts are therefore social, collectively held, and embedded in “social practice.”20 The courts’ reliance on medical affidavits as establishing capacity without further examination (despite the often “desultory” nature of those reports)21 may be understood in these terms: the “truth” of the bio-medical account provides an efficient and justified basis for legal action, eliminating the need for more extended and expensive inquiry (except on the rare occasions where that account is challenged, generally by a rival would-be guardian). The significance of “habitual thought” and “repose” in pragmatist philosophy raises the question of how the pragmatists themselves were able to break so dramatically with the key tenets of enlightenment thought: the essentialist idea of truth as a “mirror of nature” and the idea of thought as an individual, rather than social, phenomena. According to Thomas Grey, the pragmatists were able to think outside of the enlightenment paradigm because of the connections they made between Darwin’s theory of evolution and natural selection (developed as a way of describing biological phenomena) and the philosophical discourse of truth, reality, social life and social change. 22 The pragmatists, in other words, were inter-disciplinary thinkers. These “outside” ideas were integral to the development of the pragmatist paradigm.23 19 John Dewey, Logic: Theory of Inquiry (New York: Henry Holt & Co., 1938) at 101. 20 Grey, “Legal Pragmatism”, supra note 10 at 798. 21 British Columbia (Public Trustee) v Batiuk,  BCJ No 2382 (“[p]etitions by the Public Trustee for orders declaring elderly people incapable of managing themselves or their affairs and appointing committees are not uncommon. The medical affidavits required by the Act to support the application are usually brief and desultory. Few applications are contested because the vast bulk of them are brought in cases where it is obvious that the appointment of the Public Trustee or a close relative as committee is in the best interests of the person who is the subject of the proceedings” at para 3). 22 Grey, “Legal Pragmatism”, supra note 10 at 796. 23 As Thomas Kuhn’s “outsiders” are essential to the processes of paradigm revolution, and paradigm shift (as discussed in Chapter 6). See Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1962). Chapter 3 60 3.2.3 Truth, doubt, and the methodology of pragmatic inquiry Habitual thoughts are both practically useful on a social level and psychologically comfortable for the individual. Change will generally be resisted, if possible. It is only when actions based on habitual thoughts fail to produce the expected or desired results, or are indeed generative of fresh problems, that the thinker experiences the “irritation of doubt.” 24 That irritation sets off a “struggle to retain a [new] state of belief” or habit of thought that can be relied on as true, without the need for constant inquiry into its veracity.25 “Pragmatic inquiry” refers to the process developed by the pragmatist philosophers for testing the “validity and value” of ideas that have become doubtful in this way, and for testing potential alternatives through which doubt can be removed and repose restored. Charles Saunders Pierce and William James described both the “irritation of doubt” and the attainment of a new state of belief in psychological terms. Doubt was experienced psychologically as a state of unease and anxiety, experienced by the individual within her mind. The objective of pragmatic inquiry was the restoration of psychological “repose” through the transformation of belief, rejecting or refining old truths to resolve the source of doubt.26 John Dewey, in contrast, understood both doubt and inquiry in terms of what he called a “situation” i.e. a field of practice as it is organized by an idea or conceptual frame: 27 We are doubtful because the situation is inherently doubtful. Personal states of doubt that are not evoked by and are not relative to some existential situation are pathological; when they are extreme they constitute the mania of doubting. Consequently, situations that are disturbed and troubled, confused or obscure, cannot be straightened out, cleared up and put in order by manipulation of our personal states of mind. The attempt to settle them by such manipulations involves what psychiatrists call ‘withdrawal from reality’…. The habit of disposing of the doubtful as if it 24 Grey, “Legal Pragmatism”, supra note 10 at 797, discussing Charles Sanders Pierce, “The Fixation of Belief” in Charles Hartshorne & Paul Weiss, eds, vol 5, Collected Papers of Charles Sanders Pierce (Cambridge: Harvard University Press, 1935). 25 Ibid. 26 Isaac Levi, Pragmatism and Inquiry: Selected Essays (Oxford: Oxford University Press, 2013) at 1. 27 Dewey defined a “situation” as “an interaction or transaction between the agent’s point of view and the agent’s objective circumstances.” See Levi, ibid at 1. Chapter 3 61 belonged only to us rather than to the existential situation in which we are caught and implicated is an inheritance of subjectivist psychology.”28 For Dewey the “objects to be transformed” through inquiry were “situations” rather than beliefs- although the transformation of situations depended on the transformation of beliefs about that situation (especially beliefs held by actors/participants in that situation).29 Dewey described doubt about a situation as arising where persistent problems could not be adequately resolved on the terms of the current organizing idea, or where changes in the broader social context generated doubt about an idea previously believed in as true in an unexamined or taken-for-granted way. Doubt leads to “deliberation” “as to what is better to do”30 for the purpose of establishing “some new situation in which the difficulties and troubles which elicited the deliberation are done away with; in which they no longer exist”.31 “Inquiry” refers to this process of deliberation, and involves three distinct phases or tasks. The first involves the formation of ideas; the second is the “experimental testing” of those ideas in the context of the situation or environment under consideration. The third task is “judgment,” an “assertion” about the relative “validity” 32 of one theory as preferable to another in terms of re-organizing the situation in a way that “replace[s] doubtful situations by situations that [are] non-problematic.” 33 The objective of inquiry is to transform the situation in accordance with that assertion. 3.3 Pragmatism in Law 3.3.1 Law as experience: the legal pragmatism of Oliver Wendell Holmes The well-known jurist and legal theorist Oliver Wendell Holmes is considered one of the founding fathers of American pragmatism alongside Pierce and James (the three were members 28 See Levi, supra note 26 at 109, 111, citing John Dewey, Logic: The Theory of Inquiry (New York: Henry Holt, 1938) at 12. 29 Levi, supra note 26 at 1. Dewey described situations as either “determinate” (free from doubt) or “indeterminate” (where “its constituents do not hang together”); indeterminate situations were “open to inquiry”, defined as the “active and ongoing reconstruction of experienced situations.” 30 See Levi, supra note 26 at 63, citing John Dewey, Logic: The Theory of Inquiry (New York: Henry Holt, 1938) at 12. 31 Ibid. 32 Described by Dewey as “strong/effective” vs “weak/ineffective”. See Levi, supra note 26 at 88. 33 Levi, ibid. Chapter 3 62 of the Metaphysical Club, a conversational philosophical club formed in Cambridge Massachusetts in 1872 and considered to be the crucible of American pragmatism).34 Holmes’ development of a distinctive legal pragmatism combined the central pragmatist theme of anti-essentialism with a focus on judicial actors and the judicial decision making process as the site of law (as opposed to legal rules). Anti-essentialism, in law, translated into Holmes’ famous dictum that “[t]he life of the law has not been logic; it has been experience.”35 “Law” was not located in legislation or common law rules, but in the decision of a judge in a particular case. The wise judge, having undergone legal education, would draw on the rules (without being controlled by them) to produce a result that furthered the policy objectives of her historical time and place. For Holmes, “[t]he law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”36 The “truths” of law, in other words, are not immutable abstractions but plastic ideas that should be applied, and therefore developed, for the purpose of achieving socially desirable ends. Law is “a reaction between tradition on the one side [the “accretion of situated experience”] and changing desires and needs of a community on the other,”37 “an indefinite mixture of habit, instrumental reason, and the search for internal coherence.”38 “Continuity with the past is no duty but only a necessity” Holmes wrote; “there is no ground zero to set out from; the only starting point is where you actually find yourself.”39 It is therefore the responsibility of judicial actors to take ownership of this role and consciously make law that is “shaped mainly by considerations of what is expedient for the community concerned.”40 The case of Buck v Bell41 is Holmes’ most notorious decision, illustrating his perception of the judge’s role and responsibility. The case concerned the Virginia Sterilization Act of 1924. The legislation would enable the forced sterilization of the plaintiff in the case, Carrie Buck, on the 34 See Menand, supra note 7; Max Fisch “Justice Holmes, the Prediction Theory of Law, and Pragmatism” (1942) 39:4 J Philosophy 85. 35 Oliver Wendell Holmes, The Common Law (Boston: Little, Brown & Co., 1881) at 1. 36 Ibid. 37 Grey, supra note 10 at 807, quoting Holmes, ibid at 123. 38 Ibid at 815. 39 Ibid at 809. 40 Phillip P Wiener, The Dictionary of the History of Ideas: Studies of Selected Pivotal Ideas, vol 3 (New York: Scribner, 1973) at 567. 41 247 US 200 (1927). Chapter 3 63 grounds that she was mentally defective; Ms. Buck argued that the statute was unconstitutional. Justice Holmes, upheld the legislation, reasoning as follows: We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute their degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover Fallopian tubes … Three generations of imbeciles are enough.42 Buck v Bell demonstrates the risks of instrumentalist legal pragmatism, disconnected from justification in underlying principle. Holmes’ theory of pragmatism as a theory of law is primarily concerned with the case by case use of legal rules by human actors- the individual judge as the creator of law. The pragmatist philosophers, in contrast, were interested in the operation of social environments or fields of practice, and the role of shared or social ideas in organizing those environments. As discussed further in Chapter 4, judicial decision-makers do not control the process of adult guardianship in a way that “fits” Holmes’ judge-centric model; the inter-disciplinary nature of adult guardianship, in which medical professionals arguably exert the more controlling influence, is more coherently understood as the kind of “environment” or field of social practice in which organizing ideas play a more decisive role.43 To be recognised as true in this legal context, an organizing idea must not “jar” with other truths, “grafting itself then upon the ancient body of truth, which thus grows much as a tree grows by the activity of a new layer of cambium.” 44 Another way of saying this is that a legal “situation,”45 to be valid, must rooted in and justified by existing legal principle. 42 Ibid. 43 Organizing ideas in this kind of setting must co-ordinate interdisciplinary action, and so be intelligible across professions (to both medical and legal actors). 44 James, Pragmatism, supra note 13 at 36, cited in Radin, supra note 17 at 1709. 45 Levi, supra note 26 at 1, referring to Dewey’s concept of the “situation”. Chapter 3 64 3.3.2 Legal pragmatism after Holmes: legal realism, brass tacks, and inclusive pragmatism The legal scholar Richard Posner has described pragmatism as an “umbrella term for diverse tendencies,” united by a rejection of the “formalist idea… of law as a body of immutable principles”46: “a distrust of metaphysical entities (‘reality,’ ‘truth,’ ‘nature,’ etc.) viewed as warrants for certitude whether in epistemology, ethics or politics… an insistence that propositions be tested by their consequences, by the difference they make- and if they make none, set aside… an insistence on judging our projects, whether scientific, ethical, political or legal, by their conformity to social or other human needs rather than to objective impersonal criteria.”47 Perhaps the most influential of these “tendencies” in law has been the American school of legal realism48 or “brass tacks” pragmatism that incorporates the “mistrust of metaphysical entities” described by Posner together with an empirical approach to ascertaining what law “really” is (ie. getting down to brass tacks, “importi[ing] a notion of moving past idle chatter to what is genuine and important… the notion that being pragmatic in one’s thinking involves getting past mere appearances to what is “really’ going on in law.”)49 For Karl Llewellyn, getting down to brass tacks meant confining the study of law to the empirical study of conduct- “what officials and citizens do, not the reasons they give for doing what they do.”50 Thomas Grey dismissed legal realism as a “cult of the concrete” that “denies all practical importance to generalisation or 46 Posner, supra note 2 at 1656, 1663 (“[l]egal formalism is the idea that legal questions can be answered by inquiry into the relation between concepts and hence without need for more than a superficial examination of their relation to the world of fact”). 47 Richard Posner, “What Has Pragmatism to Offer Law?” in Michael Brint & William Weaver, eds, Pragmatism in Law and Society (Boulder: Westview Press, 1991) at 35-36. 48 The legal philosopher HLA Hart described legal realism as the view "that talk of rules is a myth, cloaking the truth that law consists simply of the decisions of courts and the prediction of them.” See HLA Hart, The Concept of Law, 2nd ed (Oxford: Oxford University Press, 1994) at 136. 49 John P Goldberg, “Pragmatism and Private Law” (2012) 125:7 Harv L Rev 1640 at 1641-1645. 50 Goldberg, ibid at 1643, citing Karl Llewellyn, “Some Realism about Realism: Responding to Dean Pound” (1931) 44:8 Harv L Rev 1222 at 1248. Chapter 3 65 abstraction”,51 a “freestanding” pragmatism disconnected from the epistemological concerns of classical philosophical pragmatism: Law so conceived is a set of practical measures for cooperative social life, using signals and sanctions to guide and channel conduct. More precise and determinate general theories of the nature and function of law should be viewed with suspicion, at least when put forward to control practice… law itself imposes no absolute moral claims, though the rule of law is a political ideal worthy of respect and thus to be weighed in any individual’s deliberations about what he or she finally should do.52 Ronald Dworkin has criticized legal pragmatism as a theory that judges “do and should make whatever decisions seem to them best for the community’s future [as in Buck v Bell], not counting any form of consistency with the past as valuable for its own sake”.53 A judge who was pragmatic in this sense would not really believe that individuals had rights, for example, but merely act as if they did if and when doing so was conducive to a desired end. Readers “must have been shocked,” Dworkin asserts, at the idea that “anyone would propose pragmatism [so defined] as an eligible interpretation of our present practice.”54 According to Dworkin, pragmatism fails as a description of what legal actors “really” do: legal actors do craft arguments on the basis of precedent, which they treat as binding, and really do believe themselves to be controlled by rules and principles. Steven Smith, considering Dworkin’s critiques together with what he identifies as the major “themes” in legal pragmatism (the priority of experience; “intuition” as a method of theorizing and decision making; the prudent and sceptical pragmatist temperament) concluded that the “verdict on legal pragmatism” was, in the end, “an ambivalent one.” “We can benefit from pragmatism” according to Smith “only if we do not expect too much from it…. It is a mistake to 51 “[N]o pragmatist” Grey asserts, “would endorse such an antipathy to generalization. All the major pragmatist figures accepted and asserted the importance of general principles and systematic thought; they insisted only that the test of abstractions must be their usefulness for action and concrete inquiry.” See Grey, “Legal Pragmatism”, supra note 10 at 824. 52 Thomas Grey, “Freestanding Legal Pragmatism” (1996) 18:1 Cardozo L Rev 21 at 41-42. 53 Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), at 95. 54 Dworkin, ibid at 151. Steven D Smith suggests that, despite these protestations, Dworkin was himself a pragmatist, if we accept Thomas Grey’s account of Holmes’ classical legal pragmatism, as discussed above, “Legal Pragmatism”, supra note 10, (in which all thinking, including legal thinking, is inevitably historically situated). Steven D. Smith, “The Pursuit of Pragmatism” (1990 100(2) Yale LJ 409. Chapter 3 66 expect legal pragmatism to take us very far; it cannot solve our problems, nor even provide us with a method for solving our problems… [but is] valuable primarily as an “admonishment to avoid theoretical pretentiousness,” including its own.55 Daniel Farber, rejecting the equation of pragmatism in law with brass tacks pragmatism/legal realism, has called Dworkin’s criticism of pragmatism a mistake (shared even by those “sympathetic” to pragmatism) that over-looks the conceptual underpinnings of classical pragmatist philosophy.56 “The pragmatist philosophers” Farber notes “were keenly sensitive to the importance of tradition… as a necessary ingredient in all human reasoning” and, therefore, “the essential foundation for intellectual and social progress.”57 Nor did the philosophical pragmatists reject generalised systems of theory and principle in law; writing about law, John Dewey “stressed the importance of systems in law, so as to make law as coherent and predictable as possible.”58 “The pragmatist”, Farber concludes, “would like as much system as possible but is agnostic about how much this will really turn out to be.”59 The feminist legal scholar Margaret Radin has called Dworkin’s critique an “irresponsibl[e] gerrymander[ing] of the word "pragmatism" to mean crass instrumentalism.”60 The best critical spirit of pragmatism recommends that we take our present descriptions with humility and openness, and accept their institutional embodiments as provisional and incompletely entrenched. Pragmatism recommends this openness in the only way pragmatism can- because it seems to work best for human beings. It is time for the openness and critical spirit of pragmatism to infiltrate pragmatist legal theory. Feminism can lead the way.61 55 Smith, ibid at 449. 56 Richard Rorty described pragmatism as applied to the law as “banal”. See Richard Rorty, “The Banality of Pragmatism and the Poetry of Justice” (1990) 63:6 S Cal L Rev 1811 (“I think it is true that by now pragmatism is banal in its application to law…. everybody seems to now be a legal realist. Nobody wants to talk about a "science of law" any longer. Nobody doubts that what Morton White called "the revolt against formalism' was a real advance, both in legal theory and in American intellectual life generally.” at 1811). 57 Daniel A Farber, “Legal Pragmatism and the Constitution” (1987) 72:6 Minn L R 1331 at 1344. 58 John Dewey, “Logical Method and Law” (1924) 10:1 Cornell LQ 17 at 24-25, cited in Farber, ibid at 1349. 59 Farber, supra note 57 at 1349. “[T]he only way to answer this question is to decide cases, try to construct theories, and determine what level of generality works best.” Ibid. 60 Radin, supra note 17 (“it is clear that he [Dworkin] is a pragmatist of sorts. Pragmatism is reflected in his commitment to the ubiquity of interpretation, and his concomitant commitment to finding meaning in assembling concrete events (institutional coherence and fit), rather than to measuring correspondence with abstract truth or justice” at 1722). 61 Ibid at 1726. Chapter 3 67 Radin identifies pragmatism’s “core concern” as a “commitment to finding knowledge in the particulars of experience… It is a commitment against abstract idealism, transcendence, foundationalism, and atemporal universality; and in favor of immanence, historicity, concreteness, situated-ness, contextuality, embeddedness, narrativity of meaning.” 62 If feminists largely share the pragmatist commitment that truth is hammered out piecemeal in the crucible of life and our situated-ness, they also share the pragmatist understanding that truth is provisional and ever-changing. Too, they also share the pragmatist commitment to concrete particulars. Since the details of our life are connected with what we know, those details matter. Thus, the pragmatist and the feminist both arrive at an embodied perspectivist view of knowledge.63 John P. Goldberg has called for a rejection of brass tacks pragmatism in favour of what he calls “inclusive pragmatism” in law: Inclusive pragmatism supposes that reality is complex and that it will not advance the cause of knowledge to assume that one comes to understand reality by stripping away superstructure to get to the base. Whereas the brass tacks pragmatist impatiently demands that we cut to the chase, the inclusive pragmatist calls for a patient exploration of the many facets of a phenomenon or problem.64 Being an inclusive pragmatist means recognising that law includes both “concepts and action”, acknowledging the ideological conflict between individualism and altruism without reducing the complexity of the law to this “simple dyadic opposition.”65 This inclusive, complex pragmatism is “linked to a commitment to engage legal doctrine in a constructive rather than deconstructive manner.”66 62 Ibid at 1707. 63 Ibid. 64 Goldberg, supra note 49 at 1650. 65 Ibid at 1651. 66 Ibid at 1655. “The general demotion of doctrinal analysis to lesser status within the modern US legal academy is in part a symptom of the dominance of brass tacks pragmatism and its commitment to getting behind mere appearances” ibid at 1656. Chapter 3 68 3.4 Pragmatism, bio-ethics and health law The distinctive legal pragmatism described in the previous part has roots in the Metaphysical Club and the 19th century origins of pragmatism as a school of thought. The development of pragmatism as a distinct approach in the field of bio-ethics is a more recent development. Susan Wolf describes the “pragmatic turn” in bio-ethics as a rejection of “principalism” 67 (the idea that medical practice is ethical to the extent that it accords with antecedent abstract principles, and that the bio-ethicist’s task is to evaluate practice in terms of its accordance with or deviation from those principles.)68 The rejection of essentialist, abstract principles in the context of bio-ethics, as in the legal context, has led to a focus on the empirical; “the rejection of deduction from grand and universal principles in favour of detailed attention to context, empirical realities, and differences among individuals and groups.”69 As the legal pragmatist locates the law in the work of judges and other courtroom actors, the pragmatic approach in bio-ethics locates medical ethics in the work of clinical actors, and in the experience of the particular and contextualised patient (as opposed to a generic and abstract “patient” to whom abstract ethical principles refer). This attention to the detail of embodied experience has expanded the focus of bio-ethics beyond the generic patient “without problems of race, gender or resources,” creating what Wolf describes as a bio-ethics for the “privileged patient … strong on proclaiming individual autonomy to choose, but weak on insisting on access to health care and the creation of choices for those who have few.”70 “Health law” (defined by Wolf as concerning “mid-level” rules or laws operating in the medical context as opposed to the “high level” set of abstract principles set out in Beauchamp and Childress’ Principles of Bio-Medical Ethics) has, according to Wolf, taken a similar “pragmatic 67 Susan Wolf, “Shifting Paradigms and Bioethics and Health Law: The Rise of a New Pragmatism” (1994) 20:4 Am J L & Med 395. See also, Glen McGee, 2nd ed, Pragmatic Bioethics (Boston: MIT Press, 2003); Eric Racine, Pragmatic Neuroethics: Improving Understanding and Treatment of the Mind-Brain (Boston: MIT Press, 2010); and John D Arras “Rorty’s Pragmatism and Bio-ethics” (2003) 28:5 J Medicine & Philosophy 597. 68 Wolf describes principilism as a “post hoc rationalization that is often not an accurate reflection of actual decisional processes in bio-ethics.” See Wolf, supra note 67 at 403. 69 Ibid (“John Dewey, William James, and Charles Sanders Pierce have come to the clinic and find much to criticize” at 398). 70 Ibid. Chapter 3 69 turn”, rejecting the analysis of abstract, antecedent and controlling rules to “demand that health law be evaluated empirically to see how it works or does not work in the clinic.”71 We see health law now as a process only one part of which is middle-level rules and nicely drafted documents, statutes, and judicial decisions. That part is health law on paper. But all of that paper will be perceived, misperceived, or ignored by actors in health care settings. Further pressures will be brought to bear on how legal documents and dictates are understood. At the end of this long Rube Goldberg-like process will be a patient in a bed whose care will be influenced (or whose care will fail to be influenced) by the written law. Health law as a field is now more interested than ever in this entire process, the entire Rube Goldberg machine. The bottom line is not pretty documents or elegant opinions, but what happens to the patient in the bed. What we are learning now about what happens to that patient is de-stabalizing established legal approaches. That is the paradigm shift.72 John Arras has described both legal pragmatism and pragmatism in bioethics and health law in terms of what he calls “freestanding pragmatism”, un-tethered to the “classical canon” of the philosophical pragmatists.73 Freestanding pragmatism in bio-ethics “bears a remarkable resemblance to… freestanding pragmatism in legal studies”,74 perhaps because both law and bio-ethics are fundamentally practical enterprises in which decisions affecting real people must be made.” 75 These freestanding pragmatisms are distinct from philosophical pragmatism that, for Arras, the two need not intersect: [A] legal theorist can embrace all of the central tenets of freestanding pragmatism without committing herself in any way with regard to philosophical pragmatism, old (e.g. Dewey, James) or new (Rortry, Putnam). Conversely, one can embrace the original pragmatist and neo-pragmatist assaults on epistemological and metaphysical 71 Ibid at 410. 72 Ibid at 410. 73 John D Arras “Freestanding Pragmatism in Law and Bioethics” (2001) 22 Theoretical Medicine 69 [Arras, “Freestanding Pragmatism”]. 74 Arras, “Freestanding Pragmatism”, ibid at 78, citing Richard Posner “Pragmatic Adjudication” in Morris Dickstein, ed, The Revival of Pragmatism: New Essays on Social Thought, Law and Culture (Durham: Duke University Press, 1998) at 235; Grey, “Legal Pragmatism”, supra note 10 at 787 75 Arras, “Freestanding Pragmatism”, supra note 73 at 70. Chapter 3 70 foundationalism without necessarily being led to FLP [freestanding legal pragmatism].76 Arras concludes that if pragmatism in law and bio-ethics is understood as freestanding pragmatism, “we are all pragmatists now: and it is “unclear how much of a distinctive contribution pragmatism can make to contemporary methodological discussions within bioethics…. [freestanding pragmatists] “[s]ometimes… sound as though their pragmatism amounted to little more than paying attention to factual details.”77 In sum, although pragmatism has been applied to law from the earliest days of the Metaphysical Club, the methodology of pragmatic inquiry has not. Pragmatism in law and, more recently, in bio-ethics, has generally eschewed the epistemological concerns of philosophical pragmatism, a freestanding pragmatism that “emphasizes … the richness of factual detail in which moral problems are embedded, achieving the ‘best results’ in concrete circumstances, an eclecticism with regard to competing philosophical ‘grand theories,’ flexibility with regard to the use of moral principles, the denial of foundationalism, and in some instances a stance of solidarity with the marginalized and oppressed sectors of society. [Bell v Buck aside].”78 By incorporating the epistemological framework and structure of philosophical pragmatism and pragmatic inquiry, together with the “richness of factual detail” described above and what Radin called a “commitment to finding knowledge in the particulars of experience,” the methodology used in this study is a distinctive approach in legal research. 3.5 Pragmatic Inquiry: Research Structure and Design Consistent with the methodology of pragmatic inquiry (incorporating an “appreciation for the factual detail in which moral problems are embedded”) this research study consists of three inter-related parts or phases: A theoretical examination of the nature of the mental capacity construct as a coherent “organizing idea” in the adult guardianship context, and the ethical implications of that idea as implemented in the particular context of guardianship in relation to dementia in 76 Ibid at 73. 77 Ibid at 70-71. 78 Ibid at 70. Chapter 3 71 old age; examination and articulation of vulnerability an alternative organizing idea in this field of practice; An empirical examination of the mental capacity construct as understood and “used” by legal and medical actors playing a role in the implementation of adult guardianship, together with an inquiry into the idea of “vulnerability” as understood by those actors; A judgment regarding the validity of mental capacity in the context of guardianship for persons experiencing dementia in old age in comparison to the vulnerability model set out in the first stage, and tested/refined through the second (a focus justified by the continuing role for guardianship, as opposed to supported decision making, in this context). The first phase examines the “continuity” of the mental capacity construct in the guardianship context with existing “truths” in a system of belief, followed by an analysis of the theoretical coherence of the mental capacity construct as an organizing idea in the context of guardianship in relation to dementia in old age. On the basis of this theoretical examination, I propose an alternate idea or theory of vulnerability as a potentially more effective, adequate, and coherent organizing idea, resolving the doubt created by mental capacity in the adult guardianship field in a way that “increase[s] sensitivity, increasing responsiveness to the needs of a larger and larger variety of people and things”- “moral progress”, as defined by Rortry. 79 The second phase of this research study is an empirical examination of the mental capacity construct examined in the first phase, and the preliminary theory of vulnerability set out at the conclusion of that phase. Data was collected through semi-structured interviews carried out among the following two sets of participants: Set A: 11 health professionals whose work involves the evaluation of mental capacity for older adults (members of interdisciplinary health teams) Set B: 7 retired judges 79 Richard Rorty, Philosophy and Social Hope (London: Penguin Books, 1999) at 81. Chapter 3 72 Data collected from each set was analyzed independently to generate categories/themes specific to that set; the categories/themes generated from Set A and from Set B were then compared to one another, and additional themes or categories identified on the basis of that comparison. The empirical research design and applied thematic analysis method used are described in more detail in Chapter 4. The number of research participants involved in the second phase was sufficient for the purposes of saturation, despite their relatively small number (especially in Set A), given the subject matter and interview participants. “Saturation” in qualitative research (the standard through which sampling size or number of interviews is determined) refers to the point at which no new information or themes are observed in the data.80 Relatively small samples have been found to be sufficient for saturation where participants possess expertise about the domain of the inquiry (“cultural competence”) and where both participants and the subject of the inquiry are located within a particular cultural context;81 samples of four interviews have been found to yield extremely accurate information with a high confidence level if the interviewees possess a high level of expertise or “competence” in the subject of inquiry.82 Small sample saturation is also enhanced where participants answer questions independently of one another; where interview questions comprise a coherent domain of knowledge (as opposed to unstructured and highly exploratory interviews), and where participant-sets are homogenous.83 Both sets of interview participants met all of these requirements. Each set was culturally84 homogenous (in terms of professional culture), and interview questions were narrowly focussed in this particular cultural domain. The interview data collected through the empirical research carried out in the second stage was analyzed using the method of “applied thematic analysis” (discussed further in Chapter 5). 80 See, Janice M Morse, “Designing Funded Qualitative Research” in Norman Denzin & Yvonna Lincoln, eds, Handbook for Qualitative Research (Thousand Oaks: Sage, 1994) 220 at 220. 81 Greg Guest, Arwen Bunce & Laura Johnson, “How Many Interviews Are Enough? An Experiment with Data Saturation and Variability” (2006) 18:1 Field Methods 59; A Kimball Romney, William Batchelder & Susan Weller “Culture as Consensus: A Theory of Culture and Informant Accuracy” (1986) 88:2 American Anthropologist 313. 82 Barchelder & Weller, ibid at 326. 83 Ibid. 84 “Culture” here referring to professional culture. Chapter 3 73 Thematic analysis “mov[es] beyond counting words and phrases to focus on identifying and describing both implicit and explicit ideas within the data, that is themes.”85 Applied thematic analysis is carried out for the “common end purpose of solving practical problems”86 rather than “pure” research (“oriented towards furthering existing knowledge for the sake of curiosity and knowledge itself.” )87 This approach may be contrasted with grounded theory, in which the researcher approaches the data without objective (ie. something she wants to know, or a theory she wants to test) but, rather, analyses data “to construct theories that are “grounded” in the data itself.”88 In this way, applied thematic analysis is consistent with the objectives of pragmatic inquiry: to examine and resolve specific problems arising in a particular environment or “situation” creating doubt about the validity of the organizing idea at work. The third stage of pragmatic inquiry is judgment; as between the organizing idea under examination (ie. the mental capacity construct in medico-legal adult guardianship) and the alternative idea of vulnerability developed through this research. The judgment phase is set out in Chapter 7. The deeply interdisciplinary nature of this research study underlies all aspects of this research design. I have approached adult guardianship, the subject of this research, as an inter-disciplinary practice in which legal and medical actors work together, within an over-arching legal framework, to produce a legal response to a problem that is primarily conceptualized in bio-medical terms. The theoretical and empirical phases of pragmatic inquiry in this study have therefore considered information from both legal and medical sources in order to understand and evaluate the current organization of adult guardianship and a potential re-organization that is both theoretically coherent (from both a legal and a medical perspective) and capable of consistent implementation. The choice of Dewey’s theory of pragmatic inquiry (distinct from “free-standing” legal pragmatism) is also consistent with the inter-disciplinary nature of the subject matter under consideration. Dewey’s focus on “situations” rather than individual 85 Greg Guest, Kathleen M MacQueen & Emily E Namey, Applied Thematic Analysis (Los Angeles: Sage, 2012) at 10. 86 Ibid. 87 Kathy Charmaz, Constructing Grounded Theory: A Practical Guide Through Qualitative Analysis (Thousand Oaks: Sage, 2006) at 2. 88 Ibid. Chapter 3 74 decision-makers, and the role he ascribes to ideas in terms of organizing and re-organizing those situations, makes Dewey’s methodology particularly appropriate in relation to an inter-disciplinary field of practice such as adult guardianship. I came to this project as a lawyer and legal academic; my frame was, very much, a legal frame. My legal knowledge includes private law, and my work in that area has given me a fairly deep understanding of equity and the common law in addition to adult guardianship and those areas of health law dominated by legislation. This knowledge and understanding has been helpful to me in terms of situating or rooting the ideas developed through this research in fundamental legal principle; that rooting was, for the pragmatist philosophers, essential to the workability of new ideas. The non-legal knowledge that I have been exposed to through this study (including both methodology and information) has been crucial to my ability to see outside of that legal frame, to think in a different way about long familiar subjects. This inter-disciplinary looking outside of one’s own conceptual framework is another tenet of the epistemology of philosophical pragmatism. Chapter 4 75 Chapter 4. Theoretical Inquiry (Pragmatic Inquiry Phase 1): Mental Capacity, Vulnerability, and Guardianship for the Old 4.1 Introduction This chapter is the first phase of the pragmatic inquiry carried out in this research study, including: a theoretical examination of the mental capacity construct as a coherent “organizing idea” in the law, including adult guardianship an examination the mental capacity construct as implemented in the particular context of guardianship in relation to dementia in old age; and on the basis of that examination, proposal of a vulnerability theory as an alternative organizing idea in this context. The vulnerability theory set out in this chapter will be tested and refined through the empirical research described in Chapters 5 and 6, and restated (as refined) in Chapter 7. The first part of this Chapter examines the nature of the mental capacity construct as a rhetorically constructed idea, its function in the law, and its relationship to the idea of autonomy in legal discourse and liberal/philosophical theory. The second part of this Chapter examines how the mental capacity construct works, as a legal mechanism, to resolve specific autonomy-problems arising in several (civil)1 legal contexts: agreements, bequests, and transactions; health care consent; advance planning; and adult guardianship. This part includes an overview of critiques of mental capacity with respect to each of these contexts. The third part of this Chapter examines the mental capacity construct in the context of guardianship for the old (where a guardian is appointed for the first time as a response to the loss of mental capacity in old age). This focus incorporates philosophical pragmatism’s “commitment to finding knowledge in the particulars of experience.” As noted by William James, while abstractions (such as a category of 1 The mental capacity construct is also used, in a particular way and for a particular purpose, in the criminal law context. The criminal law is beyond the scope of this study. Chapter 4 76 the mentally incapable) are useful as a means of organizing experience they should never be ascribed “a higher grade of reality.”2 The fourth and final part of this chapter examines vulnerability as an idea with multiple meanings and connotations within and outside of the law, and considers whether a theory of vulnerability can provide the basis for a coherent post-capacity adult guardianship paradigm. I suggest that this theory of vulnerability has begun to take shape in alternate theories or models of mental capacity developed outside of legal discourse. These mental capacity models are more coherently understood as de facto theories of vulnerability, connecting with concepts of vulnerability that have developed in equity and the common law. That intersection situates vulnerability within the broader legal context, rooting vulnerability theory in legal principle in a way that creates the “minimum of jolt, a maximum of continuity”3 identified by William James as essential to the truth of a new idea. 4.2 The mental capacity construct: law, autonomy, and the bio-medical self Adult guardianship is “organized,” in Dewey’s sense of that word, by a medico-legal construct of mental capacity.4 The mental capacity construct underlies and structures the processes through which a guardian is appointed (following a legal finding relating to capacity); the requirement of medical evidence as the basis for that finding (in accordance with the fundamentally bio-medical nature of the mental capacity construct); and the scope/nature of the guardian’s authority and task (which follows the scope/nature of the capacity finding). The mental capacity construct also justifies the interference with autonomy that guardianship entails by tying autonomy to a mental capacity threshold. On one side of the threshold, the interference with autonomy created by 2 Brian Z Tamanaha, Realistic Socio-Legal Theory (Oxford: Clarendon Press, 1997) at 27, quoting William James, Pragmatism and the Meaning of Truth (Cambridge: Harvard University Press, 1975) at 275. See also Thomas Grey, “Holmes and Legal Pragmatism” (1989) 41:4 Stan L Rev 786 at 787, for Thomas Grey’s discussion of Oliver Wendell Holmes on the relationship between abstraction and legal pedagogy. 3 Tamanaha, supra note 2 at 275. 4 John Dewey, Reconstruction in Philosophy (Boston: Beacon Press, 1948) (“[i]f ideas, conceptions, notions, theories, systems are instrumental to an active reorganization of the given environment, to a removal of some specific trouble and perplexity, then the test of their validity and value lies in accomplishing this work. If they succeed in their office, they are reliable, sound, valid, good, true. If they fail to clear up confusion, eliminate defects, if they increase confusion, uncertainty and evil when they are acted upon, then are they truly false” at 156). Chapter 4 77 guardianship is never justified; on the other side, the mentally incapable individual has no autonomy to interfere with.5 4.2.1 The mental capacity construct A “construct” is an idea or theory containing various conceptual elements. 6 These complex ideas are produced or “constructed” through social practices of different kinds, including discourse: “meanings, metaphors, representations, images, stories, statements and so on that in some way create a particular version of events.” 7 The construction of ideas through discourse “allows us to see things that are not ‘really’ there, and once an object has been elaborated in a discourse it is difficult not to refer to it as if it were real.” 8 Rhetorical discourse (“a discourse used to bolster particular versions of the world and protect them from criticism”) constructs a particular version of truth as “solid and factual while simultaneously undermining alternative descriptions”.9 Rhetorical discourse explains past truths as mistakes attributable to the ignorance and unsophistication of previous generations; the emergence of “real” truths is explained as part of a more general social progress. The medico-legal construct of mental capacity is this kind of complex idea, in which a particular bio-medical theory about the relationship between brain function and decision-making is inextricably intertwined with fundamental legal principles of autonomy, liberty, and dignity. These legal principles are themselves of-a-piece with the philosophical idea of autonomy as located in the process of decision-making, as opposed to the substantive nature of decisions made. The power of the mental capacity construct as a real or “out-there” 10 truth has derived from its connection with these ideas, and the intersection of two culturally powerful and 5 The supported decision making model, by removing the interference of guardianship, would make this kind of threshold determination irrelevant. 6 Vivien Burr, Social Constructionism, 3rd ed (London: Routledge, 2015). Richard Rorty famously described William James and John Dewey as “waiting at the end of the road” which Foucault and other post-modern constructivists were “currently travelling.” See Richard Rorty, Consequences of Pragmatism (Minneapolis: University of Minnesota Press, 1982) at xviii. 7 Burr, supra note 6 at 3-8. Burr describes discourse as a “system of statements which constructs an object.” The “finding” of mental capacity through the medical and legal processes discussed in this research study are additional “social practices” through which “mental capacity” is constructed. 8 Ian Parker, Discourse Dynamics: Critical Analysis for Social and Individual Psychology (London: Routledge, 1992) at 5. 9 Ibid at 107. 10 Existing outside of human interference. See Jonathan Potter, Representing Reality: Discourse, Rhetoric and Social Construction (London: Sage, 1996) at 105. Chapter 4 78 authoritative rhetorical discourses: the naturalizing discourse of the bio-medical and the powerful legal rhetoric of individual autonomy as negative liberty or “freedom from”11 interference by the state and by others. As a bio-medical theory about how the brain works, mental capacity refers to the ability of the human brain to engage in the process of making a “decision,” defined in the Oxford English Dictionary as “a conclusion or resolution reached after consideration.” “Consideration” involves foreseeing and understanding the consequences of making a particular decision, and weighing those consequences against one another in connection with one’s own interests and priorities. This medico-legal idea of mental capacity is therefore synonymous with decision-making ability. The decision that results from this process will be considered the individual’s “own” true decision; the person whose brain cannot carry out this process is incapable of making real or true decisions. This cognitive decision-making process cannot be apprehended or seen directly but only through its manifestation in the performance of thinking tasks such as judging, comprehending and remembering. The medical assessment of mental capacity is, therefore, carried out through the evaluation of that performance as indicating those internal cognitive processes. 4.2.2 Autonomy and the mental capacity construct The bio-medical account of decision-making described above parallels the “process” theory of autonomy in modern philosophy; the idea that “autonomy”, as the definitive characteristic of personhood, is located in and produced by the process of decision making (and not the substantive character of the decisions made). 12 Conversely, individuals who cannot engage in the process of autonomous decision-making are not, truly, persons. Harry Frankfurt used the term “wanton” to describe humans who do not have the capacity to think rationally and (therefore) 11 Isaiah Berlin, “Two Concepts of Liberty” in Four Essays on Liberty (Oxford: Oxford University Press, 1969) 118. 12 See for example, Gerald Dworkin, “The Concept of Autonomy” in John Christman, ed, The Inner Citadel: Essays on Individual Autonomy (New York: Oxford University Press, 1989) at 54 [Dworkin, “Concept of Autonomy”]; Harry G Frankfurt, “Freedom of the Will and the Concept of a Person” (1971) 68:1 J Philosophy 5; This theory of autonomy has been challenged by the emerging theory of relational autonomy, as discussed further in Chapter 5. See e.g. Natalie Stoljar, “Autonomy and the Feminist Intuition” in Catriona Mackenzie & Natalie Stoljar, eds, Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self (New York: Oxford University Press, 2000). Chapter 4 79 autonomously; Frankfurt described the class of wantons as “includ[ing] all nonhuman animals that have desires and all very young children. Perhaps it also includes some adult human beings as well [such as the “senile”].”13 The philosopher Joel Feinberg has suggested that “autonomy”, derived from the Greek for “self” and “rule”, may have originally been used to apply to states and that “personal autonomy” should be understood as a “political metaphor.”14 Even the mis-ruled individual (i.e. the person who makes substantively poor decisions), “like a badly governed nation, may retain his sovereign independence nevertheless” excluding only individuals incapable of “rule” of any kind (because incapable of rational thought): “infants, insane persons, the severely retarded, the senile, and the comatose.”15 Martha Fineman has drawn on this metaphor of the autonomous self as sovereign state to describe the “liberal subject” for and around whom the legal system has been constructed: Self-government (autonomy) is the ideal and defines the individual subject of liberal political discourse. ... ... Individual liberty interests are what are protected—autonomy entails being left alone to satisfy our own needs and provide for our own families without undue restraint.16 The individual who is incapable of making her “own” decisions has no autonomy to be violated; a lawless as opposed to a mis-ruled state. Legal capacity, referring to an individual’s ability to make ‘true” decisions that the law will recognise as valid and enforceable,17is inextricably intertwined with this bio-medical idea and with the philosophical process theory of autonomy (i.e. the idea that personal autonomy is located in and exercised through the decision-making process). Liberty and autonomy are intertwined, in turn, with a particularly legal idea of dignity. The “right to make personal decisions without interference by the state” was identified by the Supreme Court of Canada as 13 Frankfurt, supra note 12 at 12. 14 Joel Feinberg, “Autonomy” in Christman, supra note 12 at 27 [Feinberg, “Autonomy”]; See also Frankfurt, supra note 12; Gerald Dworkin, “Autonomy and Behaviour Control” (1976) 6:1 Hastings Center Report 23 at 25; Gerald Dworkin, “Concept of Autonomy”, supra note 12 at 54. 15 Feinberg, “Autonomy”, ibid. at 28. 16 Martha Fineman, The Autonomy Myth: A Theory of Dependency (New York: New Press, 2005) at 18 [Fineman, The Autonomy Myth]. 17 Law Commission of Ontario, “A New Paradigm for Protecting Autonomy and the Right to Legal Capacity”, by Michael Bach & Lana Kerzner (Toronto: LCO, 2010) online: https://www.lco-cdo.org/wp-content/uploads/2010/11/disabilities-commissioned-paper-bach-kerzner.pdf. Chapter 4 80 “an aspect of the respect for human dignity on which the Charter is founded” (the “basic theory underlying the Charter, namely that the State will respect choices made by individuals and, to the greatest extent possible, will avoid subordinating those choices to any one conception of the good life”)18 and a “critical component of the right to liberty” protected by section 7 of the Canadian Charter of Rights and Freedoms.19 In Re Koch (cited by the Supreme Court of Canada in Starson v Swayze)20 Quinn J. described “a right knowingly to be foolish” and to “voluntarily assume risks”; [t]he dignity of the individual is at stake.”21 The idea of mental capacity as objective (because scientific) is essential to its justification of autonomy-interference, protecting individual decisions from “subordination” “to any one conception of the good life.”22 4.2.3 Autonomy problems in legal context The autonomy construct described above is an abstraction. Autonomy is given concrete meaning and effect in a number of legal contexts in which impaired mental capacity justifies interferences of specific kinds. Each context engages a different kind of autonomy interest: the autonomy interest engaged in the law of wills is testamentary freedom; in the law of contracts, contractual freedom;23 the doctrine of trespass protects the person’s right to exclusive possession of her or his body. Of the legal contexts discussed in the following section, adult guardianship engages the broadest range of autonomy interests: controlling one’s own body without unconsented to interference (including medical interference); the ability to make valid/enforceable agreements and transactions; “everyday” relationships and decisions (what to eat, what to wear, whether to smoke or drink, for example); deciding where to live and with whom. Laws applying in each of these contexts (including the Canadian Charter of Rights and Freedoms) protect the autonomy interests described above and provide for interference with that interest where the autonomy interest engaged comes into conflict with a counter-vailing legal 18 R v Morgentaler,  1 SCR 30 at 171, 44 DLR (4th) 385, Wilson J, concurring (the majority agreed with Justice Wilson on this point); Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, Appendix II of RSC 1985 (the idea of autonomy as a right to freedom from interference by others [private individuals and the state] also underlies the common law trespass torts [trespass to the person, trespass to property, false imprisonment, and assault]). 19 Ibid. 20 2003 SCC 32 at para 76; (2003) 1 SCR 722. 21 Koch (Re) (1997),  OJ No 1487 at 17, 33 OR (3d) 485 [ONSC], Quinn J. 22 Ibid. 23 e.g. The freedom to contract. Chapter 4 81 principle or value. In relation to agreements, the countervailing principle is fairness: it would not be fair to hold an individual to the consequences of a decision that was not, truly, her own. In relation to will-making, the countervailing principle is fairness of a different kind; enforcing a non-genuine bequest would violate the fundamental principle in the law of wills, to effect to testator’s intent. The default rules of intestacy are assumed to provide a closer approximation of testamentary intent than a bequest that was not truly intended. The mental capacity construct works together with the doctrines of equitable fraud (undue influence and unconscionability)24 to resolve the autonomy problem arising in these contexts (distinguishing genuine from non-genuine decisions, protecting the former, and requiring interference with the latter). In the context of medical treatment, the mental capacity construct enables medical treatment on the basis of the common law doctrine of necessity where the individual cannot understand the consequences of refusing consent or where she is unable to express or effect any choice (the person in a coma, for example).25 In the case of In Re F, Lord Griffiths described necessity (as a defence to an interference that would otherwise be a trespass to the person) as “inextricably inter-related” with the public interest, and with the “humane development” of the law: Why is it necessary that the mentally incompetent should be given treatment to which they lack the capacity to consent? The answer must surely be because it is in the public interest that it should be so. In a civilised society the mentally incompetent must be provided with medical and nursing care and those who look after them must do their best for them.26 The necessity-based justification for interference at common law has been codified as the “emergency exception” in modern health care consent legislation providing for health care treatment without consent. Undue influence applies to consent to health treatment as in other contexts (on the basis that it would be unfair to hold the individual to the consequences of a decision that was not “really” her own).27 The nature of what is being consented to- interference 24 As discussed further, infra, the common law applying to “insane delusions” also applied in the wills context. 25 The common law defence of necessity underlies the health care consent legislation discussed infra. 26 In Re F,  UKHL 1,  2 AC 1 at 19 [In Re F]. 27 See, Re T (Adult: Refusal of Medical Treatment),  4 All ER 649,  3 WLR 782 (CA) [Re T]; Mrs U v Centre for Reproductive Medicine,  EWCA Civ 565. Chapter 4 82 with one’s body- means that undue influence is used infrequently in relation to health care consent despite its theoretical applicability, however. The autonomy problem in adult guardianship is often articulated as a conflict between autonomy and “protection,” resonating with the language and conceptual paradigm of the parens based guardianship. Protection is a problematic justification for the broad interference with autonomy that guardianship entails: as discussed in Chapter 2, the over-arching objective of the 20th century reforms to medico-legal adult guardianship was to replace the parens patriae paradigm. As described in Chapter 2, guardianship reform was intended to re-invent guardianship as a mechanism for enabling autonomy to the fullest possible extent on the other side of the mental capacity threshold (the substitute enacting the autonomous decisions the person would have made if capable of doing so). Post-guardianship reform, the autonomy problem in adult guardianship is more coherently understood in terms of a conflict between the broad and multifaceted autonomy interest engaged in that context, the complex public interest based necessity principle described in In Re F, and the fairness/public interest principles engaged by the doctrines of equitable fraud. 4.3 Mental capacity in legal context In each of the legal contexts discussed below, the mental capacity construct works to resolve one or more autonomy problems specific to that context. In each of these contexts- with the exception of adult guardianship- the doctrines of equity28 provide an alternate explanation for how and why a person’s apparent decisions (her mere choices) can be un-genuine; not really her own. Where this is the case, equity provides for these mere choices to be over-ridden. The equitable analysis is missing from adult guardianship although, I suggest, it may be covertly folded into the mental capacity determination on an ad hoc and unprincipled basis (and not on the principled basis the doctrines prescribe). As discussed below, mental capacity appears to work most successfully (without significant critique) in private law contexts in which the contextual analysis provided by the doctrines of 28 Undue influence and unconscionability. Chapter 4 83 equity applies: wills, transfers, and agreements.29 I suggest that the inadequacy/instability of mental capacity in the guardianship context, in particular, flows in part from the absence of these complimentary equitable doctrines. 4.3.1 Agreements, bequests, transactions Within and for the purposes of the law relating to wills, agreements, and transactions (including contracts and gifts) the mental capacity construct appears to “succeed in its office” without controversy or confusion. The mental capacity question in these contexts goes to the validity (and therefore enforceability) of the individual’s decision to enter into the agreement, make the bequest, etc.; if the person is not mentally capable of making the decision in question, the decision is a mere choice (not a true decision) and will not be enforced. The test in each context is whether the person is mentally capable of understanding and appreciating the nature and consequences of the decision in question at the time that decision is made. In relation to will-making, for example: To lack testamentary capacity does not mean that the testator must be in a perpetual state of substandard competence. Seemingly rational persons may be without it, while seemingly compromised persons may possess it. A testatrix’s cognitive and psychological state is amorphous and seldom static. It may change and fluctuate slightly or wildly, such that at times she is not of sound mind, while at other times she is perfectly lucid. Accordingly, a will made by a compromised testatrix executed during a lucid interval may still be valid…. The standard of mental capacity required to make a valid will does not exclude eccentric, frivolous, capricious, absurd or unfair wills. 30 These observations apply equally to other kinds of agreements (and are particularly apposite in the context of dementia in old age, as discussed infra). Where a person is found to have been incapable of making the decision in question, the agreement, testamentary disposition or transaction based on that decision will be set aside. 29 Marriage is the exception; the non-applicability of equity in this context has also been identified as a source of problems. 30 Laszlo v. Lawton, 2013 BCSC 305 at paras 191-193, 45 BCLR (5th) 125 [Laszlo]. Chapter 4 84 The doctrines of equitable fraud (undue influence and unconscionability) provide another basis for setting decisions aside in these contexts (with the exception of marriage, to which undue influence does not apply). Unlike the bio-medical mental capacity construct, these equitable doctrines are concerned with vulnerability arising through the intersection between the individual and his or her relationship context. This kind and quality of vulnerability is not restricted to members of “vulnerable populations” (as discussed later in this Chapter); a person may be vulnerable to undue influence in the context of her relationship to a spouse31 or adult child,32 for example, but not outside of that relationship. The two doctrines of equitable fraud are related, but distinct, protecting different interests (both public and private). Undue influence refers to one person’s influence over another to the extent that the person’s decision is not truly her own. Influence may be exerted intentionally through manipulation, threats or coercion but it may also be exercised unintentionally, where the influence arises by reason of a relationship between the parties “in which the potential for domination is inherent in the relationship itself”33 giving rise to a presumption of undue influence were the weaker person in the relationship confers a benefit on the stronger. That presumption can be displaced by evidence (usually independent legal advice) that the weaker person freely chose to confer a benefit on the stronger person in the relationship. The presumption effectively places responsibility on the stronger party to ensure that a decision to benefit her was freely made; the court “interferes not on the ground that any wrongful act has been committed by the donee but on the ground of public policy and to prevent the relations which existed between the parties and the influence arising therefrom from being abused.” 34 The purpose of the doctrine of unconscionability, in contrast, is to prevent persons from deriving benefit through the deliberate exploitation of power imbalance. Birks and Chin define the distinction in terms of “wicked exploitation” (unconscionability) and “impaired consent” (undue 31 See Royal Bank of Scotland v Etridge No. 2,  UKHL 44. 32 See Avon Finance Co. v Bridger,  2 All ER 281 (CA). 33 Geffen v Goodman Estate,  2 SCR 353 [Geffen v Goodman Estate]. 34 Lloyd’s Bank v Bundy,  3 All ER 757 (CA) [Lloyd’s Bank]. “Abuse” is used by Sir Sachs in this passage (quoting from the judgment of Lord Justice Cotton in Allcard v Skinner (1887), 36 Ch D 145 [Allcard v Skinner]) to describe failure by the dominant person in the relationship to carry out this responsibility (“that word in the context means no more than that once the existence of a special relationship has been established, then any possible use of the relevant influence is, irrespective of the intentions of the persons possessing it, regarded in relation to the transaction under consideration as an abuse- unless and until the duty of fiduciary care has been shown to be fulfilled or the transaction is shown to be truly for the benefit of the person influenced. This approach is a matter of public policy” at 171). Chapter 4 85 influence).35 The first is “defendant sided” (focused on the behaviour of the defendant); the second is “plaintiff sided” (concerned with the experience of the plaintiff).36 Equity intervenes in cases of unconscionable transactions to preventing exploiters from using the mechanisms of the law to benefit themselves at the expense of others, deterring future exploitation which is socially harmful in addition to the harm caused to individuals. The law of wills also provides that “insane delusions” will invalidate a will or part of a will where the delusion causes the will-maker to make a gift she would not have made if free from that delusion. Insane delusions are distinct from mental capacity more generally, and an individual might be mentally capable in all other respects yet subject to an insane delusion distorting her will-making decisions. A delusion has been defined as “insane” for this purpose where the will-maker “persistently believes supposed facts (which have no real existence except in his perverted imagination) against all evidence and probability and conducts himself however logically upon the assumption of their existence.”37 “[I]f insane suspicion and aversions takes the place of natural affection, if reason and judgment are lost and the mind becomes prey to insane delusions calculated to interfere with and disturb its functions and to lead to a testamentary disposition due only to their baneful influence, in such a case it is obvious that a will made under such circumstances should not stand.”38 Insane delusions of this kind must be distinguished from eccentricity or testamentary decisions that seems unkind or that we might not approve of (a decision to disinherit a son married to a Norwegian because of an extreme aversion to Norwegians, for example, is not commendable but it is not the product of an “insane delusion”).39 The evaluation of mental capacity, equitable fraud, insane delusions, etc. in these contexts is made by legal actors at the point of transaction (the lawyer making the agreement or will, the marriage officiant)40 and retrospectively where an action is brought to have the 35 Peter Birks and Chin Nyuk Yin “On the Nature of Undue Influence” in Jack Beatson & Daniel Friedman, eds, Good Faith and Fault in Contract Law (London: Clarendon Press, 1995) 57. 36 Ibid. 37 Boughton v Knight (1873), LR 3 P&D 64, per Sir James Hannen. 38 Banks v Goodfellow (1870), 565 LR 5 at 549 per Cockburn CJ; See also, Skinner v Farquharson, (1902) 32 SCR 58. 39 Dynna v Grant (1980), 6 ETR 175 (Sask CA). 40 Although transactions such as wills and sales, for example, do not require legal input. Chapter 4 86 agreement/transaction/bequest set aside.41 These legal evaluations may but need not include a consideration of medical evidence; this is more likely in cases of retrospective evaluation, less likely at the point of transaction (when the will, agreement or transaction is made or carried out). It is the responsibility of the legal gatekeeper effecting the transaction to determine whether the individual’s apparent decision is non-genuine mere choice (in which case he or she must not proceed).42 Where a retrospective evaluation a person’s mental capacity (or undue influence, insane delusions etc.) is made, the consequence of a finding that the person’s decision was not valid is the setting aside of the impugned sale, marriage, bequest, etc. Mental capacity, insane delusions (regarding wills) and the doctrines of equitable fraud are used in the context of wills, agreements and transactions with respect to a particular kind of autonomy problem: what to do about the mere choice of an individual who, while capable of effecting that mere choice cannot make a genuine decision (as opposed to the person who cannot effect choice of any kind).43 As a matter of theory and legal doctrine, mere choices of this kind are problematic because they are not true or real decisions and therefore have no legal meaning. In practice, mere choices will become problematic only where they produce results that are perceived as harmful to the individual’s interests and/or (in the case of wills) harmful to the interests of others in ways that the individual would not have genuinely adopted as her own in the absence of her incapacity, insane delusions, or undue influence. These legal and equitable rules have both a public and a private aspect; to protect the true autonomy of the individual by refusing to enforce false (because non-genuine) mere choices and to dis-incentivize exploitation by others. The public has an interest in actively dis-incentivizing exploitation of this kind that intersects with but is distinct from the private interest in fairness and autonomy. 41 In the case of wills, the default dispositions set out in the intestacy hierarchy (as a default, the dispositions the law presumes a person would have made unless otherwise specified) will apply, an outcome more likely to coincide with the genuine /autonomous decisions the will-maker would have made if able to do so. 42 Regarding wills, the courts have emphasised the nature of evaluation at the point of transaction as a legal determination, a responsibility that cannot be delegated/offloaded onto medical opinion. See Laszlo, supra note 30; Kournosoff Estate v Chapman, 2000 BCSC 1195; Duschl v Duschl Estate (2008), 39 ETR (3d) 229 (ONSC). 43 If the person was not capable of effecting any kind of choice, she or he would not have been able to make or attempt the will, agreement or transaction in question.. Chapter 4 87 The mental capacity construct has not been a source of controversy regarding wills, agreement and transactions; in Dewey’s terms, it appears to have “succeeded in its office” in terms of resolving the autonomy problems arising in these contexts. The mental capacity construct has been more troublesome with respect to marriage, to which the law relating to agreements generally applies with the exception of undue influence. The very low threshold of capacity for valid marriage, combined with the exclusion of undue influence, has created a fertile ground for exploitation through marriage. I suggest that one reason for the success of mental capacity in these contexts (excluding marriage) is the embedding of mental capacity in a broader body comprised of legal and equitable doctrines that, taken together, provides a more subtle and varied account of what it means to be an autonomous decision-maker. 4.3.2 Health care decision-making At common law, medical treatment (as a form of interference with the person) is a trespass to the person unless the individual has consented to that interference. Mental capacity, as the capacity to consent, is engaged in the health care context because of this rule. Medical treatment without consent was justified in the common law (where the person was incapable of giving consent) by the doctrine of necessity; “[o]therwise they would be deprived of medical care which they need and to which they are entitled.”44 Necessity justified what would otherwise be trespass to the person in both emergency situations (the unconscious accident victim, for example) and where the individual’s inability to consent was longer lasting or permanent. The theoretical justification in either context was the same. The operation of these common law rules has been replaced in all Canadian provinces by legislation relating to health care consent (by enabling substitute decision-makers for health treatment, creating advance directives,45 providing a default list of substitute decision-makers, and/or codifying the common law doctrine of necessity to enable treatment without consent in emergency situations).46 Despite significant differences between the provinces, the over-arching scheme is the same: direct consent if possible (including advance directives); substitute consent 44 In Re F, supra note 26 at 4. 45 In which the individual provides or with-holds her consent to treatment “in advance.” 46 In British Columbia, see the Representation Agreement Act, RSBC 1996, c 405, and the Health Care Consent and Care Facility Admission Act RSBC 1996, c 181. With regards to health care decision making, note that a guardian appointed under adult guardianship legislation, as discussed below, may be appointed as a substitute/supporting decision-maker. Where this is the case, the legislative scheme pertaining to guardianship applies. Chapter 4 88 where direct consent is not possible; emergency treatment with no consent as a last resort. A substitute can both “over-rule” mere choices (so long as the person was not capable of decision-making)47 and make decisions where the person is unable to make any kind of choice at all. If the individual is assessed as cognitively capable of making the decision in question her choice is her “own” and must be carried out, whatever the content, even if that decision results in the patient’s death. The evaluation of mental capacity for the purpose of health care consent is the responsibility of the medical professional providing treatment, just as evaluating mental capacity before executing a legal agreement, transfer or will is the responsibility of the legal professional involved. Legal involvement in the determination of capacity is possible but unlikely (where the medical assessment of capacity is challenged),48 either before or after treatment has been carried out. As in the contexts discussed in the preceding section undue influence can also vitiate/invalidate an individual’s consent to health care treatment. Concerns about undue influence are much less likely to arise with respect to health care consent, however, because of the different relationship to benefit: it is clear to see how the stronger person in a relationship can benefit from a bequest, gift, or an agreement to sell property. It is much less clear how analogous questions of benefit are engaged in health care consent. Medical gatekeepers of consent are also much less likely to be aware of undue influence and any potential responsibility to take it into account in deciding whether true consent has been given such that treatment can proceed. One exception in this context is end of life decision-making (including decisions around medically assisted dying), where concerns that vulnerable persons may be “induced to commit suicide” have been raised,49although no case involving undue influence in end of life decision-making has been brought at this time. Critiques of the mental capacity construct in the health care consent context have noted its incompleteness or inadequacy as a way of describing the way in which patients actually make decisions about medical treatment. Schneider’s empirical study of patients views’ led him to conclude that, although “some people may behave as autonomists imagine…. an imposing 47 Treatment without consent is also possible where the person has no substitute and is incapable of making a real decision. 48 See e.g. Collier v. Freeland, 2011 HRTO 399 (CanLII) (Ont). 49 See Carter v Canada 2015 SCC 5 at paras. 76 and 116. Chapter 4 89 number of them act quite differently. Their desire for information is less equivocal than the model assumes; their taste for rational analysis is less pronounced; their personal beliefs are not as well developed, relevant or strong; and their desire for control is more partial, ambivalent and complex. 50” Medical treatments and the health crises that proceed them can be frightening and disorienting, increasing reliance on the advice and opinions of physicians and others, such as family members. The “power and prestige” and superior knowledge of physicians makes it more likely that patents will rely on their guidance and, as Schneider notes, patients often choose to rely on physicians’ advice rather than make the decision themselves. As noted by Susan Wolf, “a sizable number of people do not want to make treatment decisions for themselves.”51 “[L]ife circumstances, such as the need to get back to a job that will not tolerate long medical absences” may effectively decide for the individual.52 Jill Craigie has noted that certain disorders by their nature (anorexia for example) distort the individual’s ability to perceive her future, thereby distorting the process of decision-making even where the individual is cognitively capable of carrying out that process. In sum, a central thesis of these critiques is that mental capacity in the medical decision-making context operates to create an illusion of free choice that masks the complex factors involved and evades tough questions about how genuine patient autonomy can be facilitated in light of those factors.53 The special role of medical actors in this context (assessing capacity for the purpose of determining their own future course of action) has also been the subject of critique. Despite the formal ascendancy of autonomy as the pre-eminent value in medicine (as in law), the traditional medical principle of beneficence makes it less likely that a physician will assess a patient as “capable” if the patient’s decision is not in the patient’s best interests (as understood by the 50 Carl E Schneider, The Practice of Autonomy: Patients, Doctors and Medical Decisions (New York: Oxford University Press, 1998) at 229. 51 Susan Wolf, “Shifting Paradigms and Bioethics and Health Law: The Rise of a New Pragmatism” (1994) 20:4 Am J L & Med 395 at 404. 52 Paul Root Wolpe, “The Triumph of Autonomy in American Medical Ethics: A Sociological View” in Raymond DeVries & Janardan Subedi, eds, Bioethics and Society: Sociological Investigations of the Enterprise of Bioethics (Englewood Cliff: Prentice Hall, 1998) 38. 53 See also, Susan Sherwin & Barbara Parish, eds, Women, Medicine, Ethics and the Law (Aldershot: Ashgate, 2002); Jocelyn Downie & Jennifer J Llewellyn, eds, Being Relational: Reflections on Relational Theory and Health Law (Vancouver: UBC Press, 2012); Mark S Komrad, “In Defence of Medical Paternalism: Enhancing Patient Autonomy” (1983) 9:1 J Medical Ethics 38. Chapter 4 90 physician). The elasticity of mental capacity and its assessment facilitates this kind of interpretation; a “wrong” decision may be taken as irrational, and therefore an indicator of impaired decision-making capacity. 54 A number of capacity assessment “tools” have been developed in the health care consent context (as in adult guardianship) with the objective of brining greater rigour to this process;55 Kapp and Mossman’s search for a “perfect capacimeter” that would at last remove subjectivity and value judgment from the assessment process, “resonat[ing] powerfully with relevant scientific findings and with modern society’s sometimes uncritical faith that human problems can be mastered through quantification.”56On a theoretical level, the doctrines of equitable fraud- undue influence and unconscionability- are applicable to health care decision-making as to other kinds of agreements.57 The English case of Re T (Adult: Refusal of Medical Treatment),58 considered the undue influence of family members on a patient’s apparent consent. The case concerned a young woman’s refusal of blood products in the presence of and, it was argued, under the influence of her mother (a practising Jehovah’s Witness). When the patient subsequently became unconscious, her father and boyfriend sought a court order to allow for a life-saving blood transfusion. Discussing undue influence in the situation, Lord Donaldson observed: A special problem arises if at the time the decision is made the patient has been subjected to the influence of some third party. This is by no means to say that the patient is not entitled to receive and indeed invite advice and assistance from others in 54 See, Geneva Richardson, “Autonomy, Guardianship, and Mental Disorder: One Problem, Two Solutions” (2002) 65:5 Mod L Rev 702; Michael Perlin, “Pretexts and Mental Disability Law: The Case of Competency” (1993) 47:3 U Miami L Rev 625. 55 See e.g. Lazare Benaroyo & Guy Widdershoven, “Competence in Mental Health Care: A Hermeneutic Perspective” (2004) 12:4 Health Care Analysis 295 at 299-300; Torsten Marcus Breden & Jochen Vollmann, “The Cognitive Based Approach of Capacity Assessment in Psychiatry: A Philosophical Critique of the MacCAT-T” (2004) 12:4 Health Care Analysis 273; See Laura B Dunn et al, “Assessing Decisional Capacity for Clinical Research or Treatment: A Review of Instruments” (2006) 163:8 American J Psychiatry 1323; Thomas Grisso, Paul S Appelbaum & Carolyn Hill-Fotouhi, “The MacCAT-T: A Clinical Tool to Assess Patients’ Capacities to Make Treatment Decisions” (1997) 48:11 Psychiatric Services 1415; Astrid Vellinga et al, “Competence to Consent to Treatment of Geriatric Patients: Judgments of Physicians, Family Members and the Vignette Method” (2004) 19:7 Intl J Geriatric Psychiatry 645; Edward D Sturman, “The Capacity to Consent to Treatment and Research: A Review of Standardized Assessment Tools” (2005) 25:7 Clinical Psychology R 954. 56 Marshall B Kapp & Douglas Mossman, “Measuring Decisional Capacity: Cautions on the Construction of a ‘Capacimeter’” (1996) 2:1 Psychol Pub Pol’y & L 73. (“[a] measure that produced a definitive, objective, numerical readout addressing the ultimate capacity question in any treatment setting would carry understandable (even if ultimately illusory) appeal” at 79). 57 Cameron Stewart & Andrew Lynch, “Undue Influence, Consent and Medical Treatment” (2003) J Royal Society Medicine 96:12 598. 58 Re T, supra note 27. Chapter 4 91 reaching a decision, particularly from members of the family. But the doctors have to consider whether the decision is really that of the patient...The real question in each such case is, does the patient really mean what he says or is he merely saying it for a quiet life, to satisfy someone else or because the advice and persuasion to which he has been subjected is such that he can no longer think and decide for himself? In other words, is it a decision expressed in form only, not in reality?59 In deciding whether influence is undue, the strength of the patient (whether she or he is in pain, depressed, tired, or being treated with drugs) will be a significant factor together with the patient’s relationship to the influencer. A close family relationship increases the likelihood of undue influence, especially in cases where religious beliefs are the reason for refusing treatment. “The stronger the relationship the greater the ability of the persuader to override the decision-making process of the patient.”60 Benefit to the influencer in this context is connected to that person’s interests and desires. 4.3.3 Advance planning “Advance planning” instruments (in British Columbia, representation agreements and enduring powers of attorney) provide alternatives to guardianship; as alternatives, these mechanisms perform similar, but not identical functions.61 Enduring powers of attorney and representation agreements, like guardianship, create ongoing relationships of substitute and (in some jurisdictions) supported decision-making for persons with diminished mental capacity with regard to both “everyday” and punctuate decisions and provide for the ability to over-ride mere choices within the scope authority granted by the instrument.62 Unlike guardianship, however, there are no requirements around the determination of mental capacity by either a medical or a legal actor prior to these relationships coming into effect. The legal relationship is created by the individuals concerned in private and in advance i.e. while the individual is mentally capable of understanding the kinds of decisions the substitute will make in the future after the donor loses 59 Ibid at 662. 60 Stewart & Lynch, supra note 56. 61 The scope of authority of a representative or attorney is relatively narrow as delimited by the applicable legislation in comparison to the potentially broad powers of plenary guardianship (provided for in all provincial legislation). Powers of attorney have authority with respect to finances and property; representatives (with the section 7 routine financial management exception noted below) with respect to health and personal decision-making. 62 Powers of attorney in British Columbia related to financial property decision-making; representation agreements relate to health care and “personal” decision-making. Chapter 4 92 capacity. 63 With the partial exception of “springing” powers of attorney64 the determination of when a donor is no longer capable of decision making, thus requiring substitute decision-making, is also private (i.e. between donor and decision-maker). Mental capacity may therefore become a legal issue in the advance planning context in exactly the same way as in the other agreement/transaction contexts discussed in the section above ie. where the appointment of the representative/attorney is subsequently challenged on the basis that the donor was not mentally capable of making that appointment at the relevant time. That retrospective assessment of capacity will be carried out by a legal decision-maker on the basis of all relevant evidence (including medical evidence where available but not requiring it) in the same way as the other private contexts discussed in this chapter. Where a court finds that the person was mentally incapable of making the instrument in question at the time that it was created the advance planning instrument (and all transactions made pursuant to it) will be set aside. The equitable doctrines of undue influence and unconscionability also apply in the same ways to the execution of advance planning documents (and therefore their validity) as to other agreements. Lawyers and notaries executing powers of attorney and representation agreements must be satisfied that the person is mentally capable of executing the document, and that undue influence/unconscionability is not involved. Unlike guardianship (as discussed in Chapter 2 and in the following section) advance planning instruments can be executed with no professional input; where this is the case, no assessment of mental capacity, undue influence, or unconscionability will be carried out at the point the advance planning relationship is created. Even where a lawyer or notary executes instrument, the kind of public input and oversight built into the structures of guardianship are missing in this context. The advanced planning donor chooses the substitute or supporting decision maker appointed in an advance planning instrument with no outside or public inquiry into the fitness or 63 The distinction between section 7 and section 9 agreements regarding the capacity of the donor is discussed in more detail in Chapter 3. Section 7 has a significantly “lower” requirement – accordingly, the scope of authority conferred is narrower than a section 9 with the exception of the authority to manage routine finances (which a section 9 representative would not have). This is because a person making a section 7 agreement may well not have the capacity to appoint a power of attorney to manage her finances and property. 64 In a “springing” powers of attorney a donor provides that a power of attorney shall not take effect until she loses capacity (otherwise the power of attorney takes effect on execution, with the parties agreeing between themselves when it will be used). Where this is the case, the donor may provide in the document who will determine whether it has “sprung” (this could be the person appointed as attorney); if nothing is specified, the loss of capacity must be established b a medical physician. Chapter 4 93 appropriateness of that person,65 and the decision-making relationship is carried out with no ongoing public oversight by a court or public office such as the Public Guardian and Trustee. The relative privacy of advance planning relationships is key to their appeal: quicker, easier, cheaper, less intrusive. On the other hand, the potential for exploitation that privacy creates has been widely noted.66 4.3.4 Adult guardianship The purpose of the modern law of adult guardianship67 is to appoint a decision-maker (substitute or shared, where provided for in legislation) for an individual who is found to be incapable of making certain kinds or classes of decisions independently68 on an ongoing basis. A guardian will not be appointed where the individual’s capacity problems are transitory, although all guardianship legislation provides for the possibility that the individual may recover capacity. As explained in Re Zurif, “The whole scheme of the Patients Property Act, as of that of the Lunacy Act…. which preceded it, is based upon the premise that the condition of the patient may improve. That possibility may be remote, or even miraculous; but it is always there while the patient lives.”69 The assessment of mental capacity preceding appointment of a guardian is, therefore, concerned with the projected course of decision making capacity. For this reason, the precise nature of the multiple decisions in question will be unknowable at the time capacity is assessed, unlike the discrete past decisions or the immediately pending decisions at issue in the contexts discussed above. Dementia adds another layer of un-knowability; the person’s performance of thinking processes will foreseeably decline although the exact progression of that decline (including “shifting sands” in the earlier stages of dementia) is not foreseeable. The purpose for which 65 Powers of attorney have authority with respect to finances and property; representatives (with the section 7 routine financial management exception noted above) with respect to health and personal decision-making. 66 Jane A Black, “The Not-so-Golden Years: Power of Attorney, Elder Abuse, and Why Our Laws are Failing a Vulnerable Population” (2008) 82:1 St. John’s L Rev 289; Carolyn Dessin, “Financial Abuse of the Elderly” (2000) 36:2 Idaho L Rev 203; Robert Gordon, “Material Abuse and Powers of Attorney in Canada: A Preliminary Examination” (1993) 4:1-2 J Elder Abuse & Neglect 173; John Bond et al, “The Financial Abuse of Mentally Incompetent Older Adults: A Canadian Study” (2000) 11:4 J Elder Abuse & Neglect 23; Law Commission of Ontario, Legal Capacity, Decision-Making and Guardianship: Final Report (Toronto: LCO, March 2017). 67 The development of adult guardianship legislation from its origins in the “mists of time” receding the common law to the present are explained further in Chapter 4. 68 These categories generally pertain to decisions about the individual’s property/finances, and decisions about the individual’s “person” (decisions about health, care and support, living arrangements, etc.). 69 (1983) 46 BCLR 175 at 175 (BCSC). Chapter 4 94 guardianship is used and the nature of the guardianship task will change accordingly over the course of the guardianship relationship, perhaps especially in the context of dementia. Guardianship for persons exhibiting the signs and symptoms of dementia in old age is frequently initiated because of concerns about exploitation where an individual’s ability to effect mere choice is being used by another person for his or her own benefit. The guardianship task, at this stage, is more likely to involve over-riding mere choice to disrupt relationships of exploitation. Over time, as the person becomes less capable of effecting/expressing choice of any kind (including mere choice), she or he will require assistance with “everyday” decision-making and the activities of daily living- a qualitatively different kind of “decision-making.” The finding or determination of mental capacity in the adult guardianship context is also distinct in terms of when, how and by whom it is carried out. The determination of mental capacity is a legal one70 but medical evidence of incapacity (providing a basis for that legal determination) must be provided. In practice, medical evidence (even where “brief and desultory”) is highly likely to be accepted and acted upon by the legal decision-maker71 unless a rival medical finding is provided, compelling a contest between the two.72 Rival capacity cases of this kind are by far more likely to involve a contest between competing would-be guardians than the individual herself vis a vis the guardianship application. From the standpoint of legal decision-makers, the medical “finding” of capacity appears to function as a (seldom contested) opaque and authoritative bio-fact. This point was addressed by Judge Marion Allen in the case of Public Trustee of British Columbia v Batiuk: “Petitions by the Public Trustee for orders declaring elderly people incapable of managing themselves or their affairs and appointing committees are not uncommon. The medical affidavits required by the Act to support the application are usually brief and desultory. Few applications are contested because the vast bulk of them are brought in cases where it is obvious that the appointment of the Public Trustee 70 Although, in the context of “statutory guardianship” regimes in British Columbia and Ontario, as discussed in Chapter 3, that determination may be made by a non-legal actor (the Health Authority designate). 71 Glyn Davies & Leslie Taylor, “Private Committeeship in British Columbia: A Study of Due Process” (1989) 8:1 Can J Fam L 185. 72 British Columbia (Public Trustee) v Batiuk,  BCJ No 2382 (BC Sup Ct) per Allan J [Batiuk]. Chapter 4 95 or a close relative as committee is in the best interests of the person who is the subject of the proceedings.”73 Critique of the way in which the mental capacity assessment bio-fact is produced (for the purposes of both guardianship and the health care decision making) has come primarily from the medical community. That critique has focused on the adequacy of assessment instruments of various kinds and their ability to distinguish between different kinds of decision-making, calling for the development of new instruments that would further minimise the space for subjective judgement (the language of “tools” and “instruments” suggesting a technical and scientific objectivity). 74 The development of “functional” methods of capacity assessment for the purpose of adult guardianship is positioned within this broader critique as providing a more objectively accurate and decision-specific measure. “Functional” in this context refers to a method of assessment that includes the individual’s ability to perform a particular kind of decision-making in everyday life (financial decision making, for example) in addition to cognitive testing scores (as produced the kinds of instruments described above). 75 73 Ibid at para 3. In the case of Batiuk, involving rival guardians of a wealthy and elderly widow, “the application [was] strenuously resisted” with “[c]ounsel… amass[ing] extensive conflicting evidence on the issue of Mrs. Batiuk's competence”. 74 Dunn et al, supra note 56; Thomas Grisso & Randy Borum et al, Evaluating Competencies: Forensic Assessments and Instruments, 2d ed (New York: Springer, 2003) at ch 2; Vanessa Raymont et al, “The Inter-rater Reliability of Mental Capacity Assessments” (2007) 30:2 Intl J L & Psychiatry 112; Leo M Cooney Jr, et al, “Who Can Stay at Home? Assessing the Capacity to Choose to Live in the Community” (2004) 164:4 Archives Internal Medicine 357; K Cramer et al, “Measuring Awareness of Financial Skills: Reliability and Validity of a New Measure” (2004) 8:2 Aging & Mental Health 161; Mavis M Kershaw & Lynne S Webber, “Assessment of Financial Competence” (2008) 15:1 Psychiatry, Psychology & L 40; James M Lai et al, “Everyday Decision-Making Ability in Older Persons with Cognitive Impairment” (2008) 16:8 American J Geriatric Psychiatry 693; James M Lai & Jason Karlawish, “Assessing the Capacity to Make Everyday Decisions: A Guide for Clinicians and an Agenda for Future Research” (2007) 15:2 American J Geriatric Psychiatry 101; Mathy Mezey et al, “Decision-Making Capacity to Execute Health Care Proxy: Development and Testing of Guidelines” (2000) 48:2 J American Geriatrics Society 179. 75 See, Jennifer Moye et al, “A Conceptual Model and Assessment Template for Capacity Evaluation in Adult Guardianship” (2007) 47:5 Gerontologist 591 at 594-97 [Moye et al, “Capacity Evaluation in Adult Guardianship”]; US, American Bar Association Commission on Law of Aging & American Psychological Association, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers, Jennifer Moye, ed (Washington, DC: ABA, APA, 2005) at 9-11; Public Guardian and Trustee of British Columbia, Guidelines for Issuing a Certificate of Incapability Under the Patients Property Act, (British Columbia: 3 October 2011) at 3, online: < http://www.trustee.bc.ca/pdfs/STA/Certificate of Incapability Package.pdf> [Public Guardian and Trustee of BC, Guidelines for Incapability Assessments]; Andrea M Newberry & Arlin K Pachet, “An Innovative Framework for Psychosocial Assessment in Complex Mental Capacity Evaluations” (2008) 13:4 Psychology, Health & Medicine 438. See also, Public Guardian and Trustee of British Columbia, Incapability Assessments: A Review of Assessment and Screening Tools, by Deborah O’Connor, Final Report, (20 April 2009), online: <http://www.trustee.bc.ca/documents/STA/Incapability_Assessments_Review_Assessment_Screening_Tools.pdf >; Grisso & Borum et al, supra note 75, ch 3; Functional approaches to capacity assessment are discussed further in Chapter 5. Chapter 4 96 The legal critique of mental capacity in the guardianship context, in contrast, has focused on the equality implications of capacity based guardianship. The characterisation of impaired mental capacity as mental disability is key within this critique, placing it within the broader social disability discourse. From this perspective, guardianship (allowing for substitute decision-making) is a form of discrimination on the basis of disability,76 and the failure to provide for supported decision-making actively dis-ables individuals in the same way that non-accessible public spaces disable persons with sensory or mobility limitations. 77 This location of disability in social and legal structures (the social disability model)78 was expressed as legal principle by the Supreme Court of Canada in Eaton v. Brant County Board of Education: [I]t is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. … It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability.79 This analysis and critique underlies the interpretation of Article 12 of the United Nations Convention on the Rights of Disabled Persons (“Equal recognition before the law”) as abolishing the legal concept of mental capacity on the basis of its fundamental incompatibility with legal principles of equality and human rights (as discussed in Chapter 2).80 76 See, Steven J Schwartz, “Abolishing Competency as a Construction of Difference: A Radical Proposal to Promote the Equality of Persons With Disabilities” (1993) 47:1 Miami L Rev 867. 77 See, Leslie Salzman, “Rethinking Guardianship (Again): Substituted Decision-Making as a Violation of the Integration Mandate of Title II of the Americans with Disabilities Act” (2010) 81:1 U Colo L Rev 157. 78 See Michael Oliver “The Social Model of Disability: Thirty Years On” (2013) 28:7 Disability & Society 1024; Sally French, “Disability, Impairment or Something In Between” in John Swain et al, eds, Disabling Barriers, Enabling Environments (London: Sage Publications, 1993) at 17; Tom Shakespeare “The Social Model of Disability” in Leonard J Davis, ed, The Disability Studies Reader (London: Routledge, 2013) 214. 79 Eaton v Brant County Board of Education,  1 SCR 241 at para 67, 142 DLR (4th) 385. 80 See, CRPD, General Comment No. 1 (2014), 11th Sess, adopted 11 April 2014, UN Doc C/GC/1, online: <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/031/20/PDF/G1403120.pdf? OpenElement> [CRPD, General Comment No. 1]. The text of Article 12 is broad and relatively open to different interpretations. Most comment has adopted the interpretative approach set out in comment No. 1; See, Eilionoir Flynn & Anna Arstein-Kerslake, “Legislating Personhood: Realising The Right to Support In Exercising Legal Capacity” (2014) 10:1 Intl J L in Context 81. Chapter 4 97 The discriminatory impacts of the mental capacity construct are dissociated from the accuracy of the capacity assessment or determination within this legal critique (unlike the medical critique discussed above). From this perspective (and within this discourse) the scientific objectivity of assessment is not the fundamental problem with the mental capacity construct; even if the holy grail of the perfect capacimeter could somehow be obtained, the discriminatory nature and effect of medico-legal guardianship and the mental capacity construct would remain. 4.3.5 Conclusions In this Chapter, I have described how the mental capacity construct is used to resolve autonomy problems arising in several areas of the law, including adult guardianship. The way that mental capacity works or is used in the law of guardianship is distinct, however, in terms of its relation to the structure and mechanisms of guardianship and in terms of the justification it provides through the intersection of mental capacity (as the cognitive ability to make decisions) and autonomy, and the mental capacity/autonomy threshold. The medical and the legal critiques of mental capacity in the adult guardianship context described in this part have raised different kinds of doubts (in the Deweyian sense) about the validity or “warranted assertibility” of the mental capacity construct as the organizing idea in the situation of adult guardianship. The medical discourse (the search for the perfect capacimeter) indicates doubt about the validity of mental capacity as an objective bio-fact and, therefore, the mental capacity threshold (on which the legal justification for guardianship depends).81 The legal critique creates doubt about the validity of that justification in and of itself (regardless of prove-ability); guardianship on the basis of impaired mental capacity is characterised, in this account, discriminatory. This critique underlies and is part of the supported decision-making paradigm (rejecting adult guardianship) discussed in Chapters 1 and 2. As discussed in Chapter 1, however, the gaps in that paradigm have precluded a true paradigm shift; those gaps have particular application to in the context of dementia in old age. The continuing role for guardianship is primarily in relation to those gaps. 81 By virtue of the mental capacity autonomy threshold described in the first part of this Chapter. Chapter 4 98 4.4 Mental capacity, adult guardianship, and dementia in old age: troubles and implications The supported decision-making paradigm was developed through the legal critique of medico-legal guardianship discussed above together with a contextualized examination of the specific problems caused by medico-legal guardianship for persons with intellectual/developmental disabilities: the discriminatory de faco identification of intellectual/developmental disability itself as impaired decision-making capacity providing the basis for guardianship82; the illusion of “substitute” decision making for persons never considered capable of decision making (making the guardian a replacement and not substitute decision-maker);83 the anti-therapeutic impact of guardianship on persons with intellectual/developmental disabilities as an enforced, perpetual childhood precluding the development of autonomy, decision-making skills and psychological well-being; and the devastation caused by the death of parent-guardians for persons who have been deprived of the opportunity to develop autonomy.84 This section sets out a contextualized examination of the specific problems caused by medico-legal guardianship in the context of dementia in old age. The adult guardianship model developed through this research (as an alternative to medico-legal guardianship and supported decision-making) must be responsive to any particular problems identified through this examination. 4.4.1 Mental capacity, adult guardianship, and dementia in old age Biological processes are at the roots of the [many perplexing] problems [now attendant on old age] and of the methods of solving them, but the biological processes take place 82 Even where guardianship legislation calls for a “decision-specific” capacity assessment. 83 See, Louise Harmon, “Falling Off the Vine: Legal Fictions and the Doctrine of Substituted Judgment” (1990) 100:1 Yale LJ 1. 84 Nina A Kohn, Jeremy A Blumenthal & Amy T Campbell, “Supported Decision-Making: A Viable Alternative to Guardianship” (2013) 117:4 Penn St L Rev 1111 at 1113, 1117-120; See also, Kristin Booth Glen, “Changing Paradigms: Mental Capacity, Legal Capacity Guardianship, and Beyond” (2012) 44:1 Colum HRLR 93; Harmon, supra note 85; Bach & Kerzner, supra note 16. Chapter 4 99 in economic, political and cultural contexts. They are inextricably interwoven with these contexts so that one reacts upon the other in all sorts of intricate ways. We need to know the ways in which social contexts react back into biological processes as well to know the ways in which the biological processes condition social life. 85 The “processes and contexts” described by Dewey in the passage above intersect to make up the experience of old age for each individual. Standardized age markers such as 65 are used for some purposes as a kind of shorthand for the experience of old age. Age markers do not in and of themselves cause a person to become old in any substantive sense, however, and persons on the far side of the marker may be more or less “old” in the sense described by Dewey. Age markers can and do inform an individual’s “economic, political and cultural context” (discussed in this section) by providing access to public benefits, for example, or barriers to employment. No one “turns old” on his or her 65th birthday, however, and the old age is not universally experienced in the same way (as noted by Seneca the Younger in 44 BC); “[t]here is not one type of old age for all people.”86 The discussion in this part is informed by this approach to and understanding of old age. Strong empirical evidence indicates that guardianship is used, in the great majority of cases, in relation to persons losing capacity in old age.87 The loss of mental capacity in old age is most frequently characterised as dementia, a “deterioration in cognitive function (i.e. the ability to process thought) beyond what might be expected from normal ageing.”88 The examination set out in this section will consider the following factors arising from dementia and the physiological 85 John Dewey, “Introduction” in Edmund Vincent Cowdry, ed, Problems of Ageing: Biological and Medical Aspects (Baltimore: Williams & Wilkins, 1939) at xxiii-xxvi. 86 Attributed to Consolation ad Marciam, 1 AD; Tim
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UBC Theses and Dissertations
Rethinking the adult guardianship response : mental capacity and vulnerability in the context of dementia… Hall, Margaret Isabel 2018
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