Eleanor Roosevelt, 1958

'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958

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Tuesday, 8 May 2012

Here's how they do it in BC

As the states that ratified the Convention on the Rights of Persons with Disabilities (CRPD) puzzle over how to implement Article 12 – the right to equal recognition before the law – many are looking overseas for different approaches. One approach that has received widespread interest is found in British Columbia, Canada (BC) who implemented a novel system for supporting legal decision making over fifteen years ago. I’ve been interested in the BC system for the light it shines on the Mental Capacity Act 2005 (MCA), and for ideas of how we might do things differently. I thought others might also be interested, so I decided to post what I’d found. In writing this piece I am enormously indebted to Robert Gordon at Simon Frazer University in British Columbia, for sharing some chapters from his forthcoming book on BC planning and guardianship laws. All mistakes and misunderstandings, however, are attributable to me. 

There are a huge range of ways in which you could compare the BC system to the MCA, but I’m particularly interested in three related issues: 
  • Who decides 
  • When can substituted decisions be made 
  • How should substituted decisions be made? 
In the UK, one of the things I’ve noticed is that whilst considerable attention has been devoted to the issue of when and how best interests decisions can be made under the MCA, there has been relatively little attention to the question of who makes decisions. The questions of when a person lacks capacity and how (or if) substituted decisions should be made are interesting ethical and metaphysical issues in their own right, but it's the sociological and political issues around the MCA that really grip me - who is it that we are empowering?  In my thesis, I make the argument that despite the MCA’s claims to ‘empower’ adults with cognitive impairments, what it in practice does is set up a series of conflicts within and between two possible groups of substituted decision makers: professionals (mainly health and social care, and legal), and family and social networks. In effect, if you are a disabled or older person seeking to be empowered by the MCA to give effect to what you want to be done, you’d better hope that somewhere in one of those groups is a person who also wants what you want, and is willing and able to fight for it. 

Under the MCA, there is only one mechanism by which you can nominate the person you want to make substituted decisions on your behalf: a Lasting Power of Attorney (LPA). There are two categories of LPA – property and affairs, and personal welfare. There are many, many advantages to having an LPA if you would prefer decisions made about you were made by people you know and trust, and who you feel know you - rather than the unknown and reasonably random assemblage of professional decision makers given authority under s5 MCA. However, as anyone who has made, registered and activated an LPA will know, they are expensive, a bureaucratic hassle, and very few people realise that they should even have one. As an example, I am getting married next month and it occurred to me that I wanted husband-to-be to have authority over financial and personal welfare decisions should I lose capacity (contrary to popular misconception, being married to a person does not grant them this authority). But for us to register two LPA’s for each other, to discuss these with a solicitor, was actually going to cost more and involved more bureaucratic hurdles than organising our civil wedding ceremony!! So it’s small wonder very few people have LPA’s – there are plenty of disincentives to sorting one out, and because it requires a reasonably high level of capacity to make one once you need it it’s probably too late... Once you’ve lost capacity, or if you were deemed never to have it, then the Court of Protection can appointed a deputy under s16 MCA, but as I’ve written before, the likelihood is that they will opt not to unless a person has serious financial assets, and the tendency is not to appoint for personal welfare decisions unless there are compelling reasons to do so. 

To return to the point, the interesting thing about BC laws is that it offers more routes for families and social networks to influence decision making where a person is deemed incapable. What is more, it offers a person who may have quite limited decision making ability to choose who makes decisions on their behalf. It also offers a slightly different framework for when and how substituted decisions must be made, which I’ll discuss in more detail below. 

These are the key statutes: 
I'll start by talking about Power of Attorney documents, but you might want to skip over to Representation Agreements to get to the really interesting stuff.

Power of Attorney 

BC Enduring Powers of Attorney (PoA – so as not to get confused with our EPA’s!) are not so dissimilar to LPA’s, so I’ll start with these. Unlike under an LPA in England and Wales, in BC you can only make a PoA to handle property and financial affairs. The requisite capacity to make a PoA is as follows: 
11 (1) Until the contrary is demonstrated, an adult is presumed to be capable of
(a) making decisions about the adult's financial affairs, and
(b) understanding the nature and consequences of making, changing or revoking an enduring power of attorney.
(2) An adult's way of communicating with others is not grounds for deciding that the adult is incapable of making the decisions or having the understanding referred to in subsection (1).
12 (1) An adult may make an enduring power of attorney unless the adult is incapable of  understanding the nature and consequences of the proposed enduring power of attorney.
(2) An adult is incapable of understanding the nature and consequences of the proposed enduring power of attorney if the adult cannot understand all of the following:
(a) the property the adult has and its approximate value;
(b) the obligations the adult owes to his or her dependants;
(c) that the adult's attorney will be able to do on the adult's behalf anything in respect of the adult's financial affairs that the adult could do if capable, except make a will, subject to the conditions and restrictions set out in the enduring power of attorney;
(d) that, unless the attorney manages the adult's business and property prudently, their value may decline;
(e) that the attorney might misuse the attorney's authority;
(f) that the adult may, if capable, revoke the enduring power of attorney;
(g) any other prescribed matter. (Power of Attorney Act 1996
There are similarities to aspects of the MCA, including the presumption of capacity and allowances for differences in communication, but it is interesting to note that the statute itself gives very specific details of what a person must understand in order to make a PoA. It is possible that this sets a higher threshold than the MCA's provisions for LPA's; indeed Robert Gordon notes in the text that whereas the ‘old’ standard was influenced by the English case Re K, Re F (1988) (sorry, can’t see it on BAILII), this is no longer to be used ‘because of the lack of safeguards in the provincial Power of Attorney Act. The legislative scheme in the province is not the same as that found in England and Wales’. 

Any adult may be appointed as an attorney provided they are not remunerated for any personal care or health care services provided for the donee, or are employed by any care facility where that person lives. The Public Guardian or an authorised financial institution might also be nominated. As under LPA’s, more than one person can be named to act, and they can have overlapping or distinct areas of authority. Furthermore, a donee can include a ‘triggering’ event which activates the PoA, for example if a named person(s) confirms that a person is incapable of managing their affairs (also known as a ‘springing’ PoA, which sounds a bit like Zebedee or a gambolling lamb will come to your aid) – again, LPA’s can contain similar provisions. 

The powers of attorneys under PoA’s are similar to LPA’s, and include specific guidance on making gifts. There is statutory notice that a PoA may not make or alter a person’s will. PoA’s make not make personal welfare decisions – that is catered for by representation agreements (below). The reasons is presumably to avoid confusing overlap where a person has both Representation Agreements and PoA’s. PoA’s are under similar duties to LPA’s regarding honesty and good faith, confidentiality, diligence, record keeping, and acting only within their authority. There is specific statutory provision to allow PoA’s to access information relevant to the decisions they must make. Like LPA’s they are required to act in a donee’s best interests, but unlike the MCA there are additional specific provisions, including giving priority to personal care needs, ‘fostering independence’ and ‘to the extent reasonable, keep the adult's personal effects at the disposal of the adult’. Unlike under s4 MCA there are no duties to consult others, but there is a strong emphasis on a person’s past and present values, wishes and preferences. This reflects a generally stronger orientation towards the person’s own values under BC law than the MCA, which I’ll discuss in more detail below. 

What about safeguards for PoAs? As far as I can make out, and unlike under the MCA, there is no statutory requirement for PoA’s to be registered with any public body. This clearly takes out a large degree of the cost and bureaucracy, but does it also remove some of the safeguards? That rather depends on your view of the efficacy of the Office of the Public Guardian to protect against financial abuse, and how you balance that against the any disincentives that registration requirements create. This isn’t an area I feel qualified to comment on, as it isn’t central to my research, but certainly the cost and admin has been a factor for delay in sorting out my own LPA… 

There is, however, a mechanism for any person to make a report to the Public Trustee if they have grounds for concern about the PoA and how it is being used (s34 Power of Attorney Act). The Public Trustee must review this report, and can conduct an investigation. They can apply to the court, or suggest to the person who made the complaint, that they apply to the court, and the Public Trustee can also seek to become the person’s guardian. The court has various powers to require information of the PoA, to pronounce upon the validity of the PoA and its use, to terminate it in part or in total, and potentially even to void any acts made under it. In this sense, therefore, there are safeguards – but they are triggered by whistleblowers, rather than through routine supervision. I am unaware of any studies of the efficiency and efficacy of routine supervision, as opposed to ‘whistleblower’ approaches in relation to LPA’s. 

Representation Agreements 

This is where things start to get really interesting. As I mentioned above, there are all kinds of reasons why a person may not have an LPA – people very often don’t think about making one, and by the time you need one you may have already lost the requisite capacity to make one; some people (particularly those with developmental disabilities) never have the capacity to make one; people don’t make them because they’re costly and complicated; even once you’ve made one the bureaucratic fun and games of actually using the thing has only just begun... 

The Representation Agreements facilitated by the Representation Agreement Act 1996 (RAA) do have some similarities to LPA’s, inasmuch as they can empower a person of your choosing to represent you on a range of issues, but they have some interesting differences. In the first place, the requisite capacity to make a Representation Agreement is significantly lower than that of a PoA (see above), and also lower than an LPA under the MCA. The RAA specifies that a person does not need to have contractual capacity, or even to be capable of managing their health, personal, legal or routine financial affairs. As elsewhere in BC legislation (and the MCA), capacity is presumed, but if there is doubt as to whether a person was capable of making a representation agreement the following must be considered: 
(a) whether the adult communicates a desire to have a representative make, help make, or stop making decisions;
(b) whether the adult demonstrates choices and preferences and can express feelings of approval or disapproval of others;
(c) whether the adult is aware that making the representation agreement or changing or revoking any of the provisions means that the representative may make, or stop making, decisions or choices that affect the adult;
(d) whether the adult has a relationship with the representative that is characterized by trust. (s8 RAA) 
This is a far cry from the more ‘cognitive’ requirements of the MCA, and places emphasis instead on the quality of the relationship between a representative and the donee. I have to say, I think there are sound reasons for favouring this approach for this type of decision. There are often times in life when any of us find it hard to understand, use and weigh the information relevant to a decision, and where instead we make the decision based on a trusted person’s recommendation. Speaking for myself, I tend to do this when making decisions about whether to shell out large sums on fixing some incomprehensible fault with my car – if I know and trust the mechanic, I tend to go with what they recommend. 

Because the same capability test is employed to terminate a Representation Agreement, it also means that a representative can be stripped of their powers where trust breaks down, or where a person no longer wishes to be supported by a particular individual. This strikes me as also more in keeping with the reality of human relationships – how many people, upon facing loss of independence and requiring more support, find out that those they trusted behave rather differently towards them when they are in need? A mechanism which can continue to offer an individual some power over who supports and represents them after capacity to contract and manage one’s affairs has been lost seems, to me, to be more in keeping with work on relational elements of capacity (see this post of mine, and this by Tom O’Shea). It also recognises that sometimes our emotional capacity of knowing who to trust to help us make a decision can outstrip our cognitive capacity to reason and understand the specifics of that decision. It may also feel significantly less intrusive to privacy to have decisions taken by people one has chosen than by people one knows less well. Of course, the usual concerns about undue influence, people being manipulated, would arise – but in legal terms you could surely then contest this on the grounds that it was not a relationship characterised by trust, but by oppression and/or exploitation? (I have no case law to back up that assertion, but I’ll stick it here if when I’ve checked it out). A mechanism like this could be revolutionary for adults with developmental disabilities who have never been deemed capable of making an LPA, or for those who are confronted with acquired incapacity without having prepared. For those with limited or malignant social capital, Representation Agreements would be of less use, but then so would LPA’s or any other mechanism – so shoring up social capital must be seen as an interrelated project. 

What powers do representatives have? There are two tiers of Representation Agreements. Under s7 RAA, and unlike PoA’s, a representative can make many decisions about a person’s care and welfare. They can also make a large number of “routine” financial decisions which are specified by the RAA and regulations (see S2 here).  These include fairly broad powers but stop short of certain health and personal care decisions, and certain financial decisions like buying or selling real estate, taking out credit cards or loans, loaning property or acting as a director of a company (powers for some of these can be found in PoA’s). Representation Agreements providing for routine financial management require a monitor to be appointed, barring certain exemptions (one is that the Representative is a person's spouse). The second tier are called ‘non-standard Representation Agreements’ under s9 RAA, these cover decisions like: where a person lives, and with whom; whether they take part in education, work or social activities; who they may have contact with; day to day decisions like diet and dress; give or refuse consent to healthcare – even if the adult refuses at the time, and also including life-sustaining treatment; to ‘physically restrain, move and manage the adult’ or authorise others to do so if necessary to provide personal care or healthcare. These latter powers – to authorise treatment an adult refuses, and to restrain, move or manage, are known as “Ulysses Agreements”, and they empower a chosen representative to do something against one’s presently expressed wishes and preferences on the basis of past, capable, wishes and preferences. “Ulysses”, because of Ulysses’ famous request for his sailors to tie him to a mast as they sailed past the Sirens so he would be able to listen to their song but not to act upon his temptations. Gordon writes: 
The intent is to have a capable adult's pre-expressed instructions or wishes followed when the adult is ill and incapable, regardless of any instructions they may be giving at the time (e.g., refusing to give consent to treatment). A Ulysses agreement allows the adult, in consultation with health care providers, to determine the kind of treatment that he or she would like to have when ill, to authorize his or her chosen representative (or group of representatives) to ignore any illness-affected directions and wishes and to restrain the adult, convey him or her to a health care facility and give substitute consent to admission and treatment. 
Ulysses agreements may be made at any time but are most beneficially developed as part of a collaborative hospital discharge plan. Just prior to discharge, the advantages and disadvantages of, for example, different treatments may be examined and discussed by a patient and his or her attending psychiatrist, psychiatric nurse and/or psychiatric social worker. 
A slightly higher threshold of capacity is required to make a Representation Agreement under s9 RAA: 
An adult may authorize a representative to do any or all of the things referred to in section 9 unless the adult is incapable of understanding the nature and consequences of the proposed agreement. (s10 RAA) 
As with an LPA, a Representation Agreement may be limited to only some of these powers or their use condition upon other considerations, and so they can be tailored to a person’s wishes and preferences. 

Representation Agreements must be signed and witnessed, but there is no legal requirement that they be registered (although there is a voluntary registry, which can be searched by licensed individuals, which has a very low cost for registration). Because there is no registry there is no routine monitoring, although a person who is making an RAA can appoint a monitor of their choice to keep an eye on the representative they have chosen. 

How should representatives make decisions? Duties of representatives are found in s16 RAA. There are some similarities with PoA’s and also LPA’s, like duties to act honestly, in good faith, and within the authority of the agreement. But there are also some interesting differences from the MCA. Although the person themselves must be consulted, there is no specific duty to consult with others. Representatives are under a general duty to try to determine a person’s wishes and preferences, but there is a sort of nested ‘capacity’ threshold within s16 RAA which means that representatives can make substituted decisions which do not comply with their wishes and preferences if it is not “reasonable” to do so. This is interesting, as it seems to effectively function like an outcome test on whether a person’s own choices should be respected. Outcome tests like ‘reasonableness’ are often derided as being outdated, and preventing a person from making unwise decisions as is our right in a liberal society. But it’s interesting to note that in theory using an outcome test of ‘reasonableness’ a person who may ‘lack’ capacity under the MCA may still enjoy respect for certain ‘reasonable’ wishes and preferences, without having to submit to a capacity assessment. Indeed, in the case Re S&S (Protected Persons) (2009) [2011] CoPLR Con Vol Judge Hazel Marshall advocates upholding a person’s wishes unless they are ‘irrational, impracticable and irresponsible’, although in a later case Lewison J found that she 'may have slightly overstated the importance to be given to P's wishes' (Re P [2009] EWHC 163 (Ch)). 

Where a Representative cannot determine a person’s wishes, or they are unreasonable, then they must comply with any wishes they expressed whilst capable. Roberts emphasises that this includes any which the person may have expressed since making the Representation Agreement which ‘update’ the position on what a person’s beliefs, values and preferences were. This seems a lot like the now-rejected ‘substituted judgment’ standard which the old Court of Protection used to employ. It’s an interesting question whether this is a more person-centred and less paternalistic standard than ‘best interests’. In BC, only if the person’s present or past wishes or values cannot be determined, may a substituted decision be made according to a person’s ‘best interests’. Now, of course s4 MCA does require consideration of a person’s past and present wishes and preferences, but there is clearly a much greater weighting towards these in BC law. The entirety of their planning laws seem to be structured towards preserving a person’s own individual trajectory through life, and offers much less ‘space’ to how others feel that they should proceed. I do sometimes wonder how much court time could be spared if all that fell to be determined under s4 was whether what a person wants is possible, and then what they would have wanted at a previous time? What cases would be decided differently, I wonder? There are probably quite a few borderline cases which might have gone quite differently if such a strong emphasis was placed on a person’s past and present wishes and preferences. 

What about safeguards? The RAA takes a novel approach by allowing (and in some cases requiring) that a person choose their own monitor to ensure the Representative complies with their duties. This is definitely a ‘big society’ solution to the administrative and resources issue of supervising support and substitute decision makers, and arguably allows people greater control and privacy in their affairs.  But it also also arguably ‘privatises risk’ and places a greater burden on social networks (I’ve ‘borrowed’ those criticisms from critiques of ‘personalisation’ in social care). And for those with limited social capital, once one has appointed a representative(s) there may be no obvious candidates left for a monitor, and I can’t see any provision for a publicly appointed monitor or something like statutory funding for a professional to take on the role.  It does seem possible that a Monitor might do a bad job (although, one could presumably say the same thing of a state-appointed supervision scheme). Nevertheless, I can see the attractions of a personally chosen monitor, who might be more likely to dispute whether a substituted decision reflects a person’s known wishes and preferences, rather than by reference to ‘objective’ or professionalised ‘best interests’ standards.

Echoing the PoA safeguards, Part 5 of the RAA enables the Public Trustee to respond swiftly to concerns about a Representation Agreement, by permitting any person to report their concerns or objections, and requiring the Public Trustee to review this report. As with PoA’s they can conduct an investigation and apply to court, and the court can vary or terminate the Representation Agreement – including appointing a monitor. In 2002 a report on the RAA and other planning provisions was commissioned by the Attorney General of the Province of British Columbia, and they commented on how difficult it was to determine whether the cases of abuse that the Public Trustee intervened in were the tip of the iceberg, or exceptions to the general rule.  

Guardianship and temporary substituted decision makers – a last resort 

As a last resort, where a person has not made a PoA or an Representation Agreement, or there have been problems with them, then the state of BC still retains guardianship legislation whereby a Committee can be appointed by the court to make decisions on behalf of a person. This will most likely be the option for those with limited social capital, or where the Public Trustee and the court has concerns about those who were previously chosen under other planning provisions. 

Interestingly, and unlike under the MCA, in BC a health professional may not (except in emergencies) perform any treatment upon a person without a valid consent. In circumstances where a person is incapable of giving consent to treatment, and they have no appropriate Representation Agreement or Guardian, the professional must seek the consent of a ‘temporary substitute decision maker’. These are prescribed by a statutory list, under s16 Health Care (Consent) and Care Facility (Admission) Act 1996 – in a similar fashion to the statutory list determining the Nearest Relative under the Mental Health Act 1983. The statutory list is pretty long, and includes grandparents, relations by marriage and close friends; but where the list is exhausted then the Public Trustee must be approached. And again, the temporary substitute decision maker is under obligations to consult with the person, and give effect to their present or past wishes and preferences where possible. This is quite an interesting contrast to the MCA, whereby professionals must merely consult with family members, but ultimately the decision is theirs (unless there is an LPA or deputy with the requisite authority). I would be interested in finding out more about how this relates to admission to care facilities or consent to social care services, as this is a HUGE flashpoint for power relations between professionals and families (if you know more about this, then please do get in touch).  [Edit 15/05/2012: @slardack, via @bmcsherr drew my attention to recent work by the Victorian Law Reform Commission, Australia, on Guardianship.  This includes a really helpful background paper (pdf) contrasting DoLS-like regimes in various jurisdictions, including BC (although some provisions are not yet in force).  In BC admission to a care facility will require consent, or the consent of a substitute decision maker (guardian, or representative, or temporary substitute decision maker - in that order).  Incapacity to consent to or refuse admission must be certified by a medical practitioner or prescribed health care provider.  Substitute decisions use a 'best interests' standard.  Under new provisions, placement must be authorised by a 'placement co-ordinator', who must check certain DoLS-like requirements are met and inform the person of their rights.  It is unclear to me what a person's rights are, for example whether if they object they have access to advocacy and/or the court to challenge their confinement.  There are also very interesting provisions for regulating restraint, much better than we have here, which I'll write about another time).]

A different balance of power 

I’ve often heard British Columbia described as a ‘libertarian’ state. I’ve never been there, and don’t know much about it (except that my father is keen for me to move to Vancouver so he could visit me there...).  I’m not sure if British Columbians would regard this as a compliment or not, but certainly there does seem to be something of a libertarian flavour to the BC legal capacity laws when one contrasts them with the MCA. It’s important to note that the BC laws do still retain a place for ‘incapacity’ and for substituted decisions. Although this is not statutorily linked to ‘disorders of the mind or brain’ based on my cursory survey of case law it does seems to affect the disabled community and older people exclusively, and I’m unsure whether it would encompass the types of cases being heard under the Inherent Jurisdiction in England and Wales. 

However, incapacity is managed in an interesting way – which seeks to preserve maximal control over who supports you and makes substituted decisions where necessary, even if you are no longer capable of making those decisions yourself. The powers of Representatives are strikingly similar to guardians in other jurisdictions, but – crucially – you get to choose who your guardian is. The power to dismiss Representatives is also exercised at a lower capacity threshold. The ability to potentially strip a Representative of their powers may in fact ensure that they include the person in any substituted decisions, inform them of their reasons, work to build trust and work towards solutions which will help express a person’s longer term wishes and preferences. The facility to choose who makes decisions about your life, and who does not, is quite simply unavailable under the MCA once a person is no longer capable of making an LPA. For me at least, this is one area of the MCA that I find quite terrifying – if I am unable to understand the nature of a decision, I want to at least exercise some control over who advises me and chooses on my behalf.  This also lends some continuity to the range of supported or substituted decisions involving the same person.

The RAA and provisions for guardians and temporary substituted decision makers do mean it is possible for substituted decisions to be made which override a person’s wishes and preferences. In terms of outcomes of supported or substituted decisions, this is not exclusively contingent upon the 'capacity' to make a particular decision, but a nested requirement of whether what they want is reasonable. Despite concerns about outcome-based tests, this may in some circumstances mean that ‘reasonable’ wishes and preferences can be complied with without the need for the intrusive assessments of how a person understood, used and weighed the information relevant to that decision. I would, however, be interested to see some case law on this ‘reasonableness’ criterion and where the boundaries lie. Where a person’s wishes and preferences are not deemed to be reasonable, then the next alternative is effectively a ‘substituted judgment’ based on their past expressed wishes and preferences.  This contrasts with the ‘best interests’ approach which can incorporate elements of substituted judgment (Re G (TJ) [2010]) but substituted judgments are not necessarily determinative of outcomes under s4 MCA (e.g. D v JC & Others (2012)). On the face of things, the hierarchy of grounds for substituted decisions seems to come closer to preserving a person’s overall autonomy than the s4 MCA process, even if it means sometimes overriding a person's presently expressed wishes and preferences.

The BC approach is imbued with a minimalist approach to state intervention in the lives of citizens and those they have chosen to support them. Although there are safeguards for PoA’s and Representation Agreements, these are not routine, and are only triggered where a concern or objection is reported to the Public Trustee. This contrasts with the routine registration and monitoring of LPA’s and deputies required under the MCA. Where routine monitoring is to be preferred, a person can appoint a monitor out of their own social networks. I am unable to comment on whether this results in more or less abuse of conferred authority, and I am unaware of any research which could give more information on this. However, I do think it is likely that the comparatively ‘lightweight’ provisions for Representation Agreements in contrast to the requirements for LPA’s and deputies mean that more people may take them up, and more people will still be in a position to take them up when the need for them becomes more pressing.

Another sense in which the BC approach shifts power away from the state is through placing many decisions which under the MCA would usually be in the hands of health and social care professionals into the hands of Representatives or even temporary substitute decision-makers. I have written plenty of times before that I don’t think it is necessarily better that people’s families have greater power over them than professionals, but what I would say is this: where families exercise decisions about personal care or healthcare, professionals will be involved anyway, and if families appear to abuse the powers vested in them then professionals will be in a stronger position to alert the Public Trustee or apply to court by virtue of their professional knowledge and experience.  By contrast, should professionals abuse their substituted decision making powers under the MCA, then families are unlikely to have any knowledge of how to challenge these decisions, and may lack the confidence or resources to do so. In my view, the ‘safeguarding’ cases involving families that alarm health and social care professionals are still likely to benefit from state intervention, but in cases where the state oversteps its boundaries then families are often ill-placed to be the mechanism that reins it in. I am very aware that families often make quite paternalistic decisions, and it’s this very issue that professionals are worry about. As the research I discussed last week suggests, families are not, in fact, always very good at involving their relatives in decisions, and often they exercise control over access to that very decision by – for example – choosing not to attend or pursue particular appointments. However, these do not seem to be areas where professionals having decision-making authority leads to improvements in a person's involvement, as indicated by the research in the last link. If people do not seek out clinical appointments, there is little that health care professionals can do about that. And health and social care professionals in BC concerned that people are sidelined from decision making could still report this matter to the public trustee; indeed, it could be made a professional duty to report concerns where people were excluded from decisions by their Representatives.

Well, what are we left with? Legal capacity legislation in both MCA and BC has come down on different sides of where decision making powers should lie, as well as how decisions should be made. A person in BC is likely to retain greater control over at least who makes decisions about them, and their personality – past and present – will be the framework for any substituted decisions, rather than abstract best interests where subjective factors are not necessarily given priority. My guess is that carers of older and disabled people would really favour the BC approach over the MCA, as would those of a more libertarian bent. My guess is that many people whose decision making is impaired would also like to exercise greater control over who supports them.  I suspect, therefore, that the BC approach would be attractive to them.

Those whose professional lives bring them into regular contact with financial and other forms of abuse of people by those within their social networks may be more suspicious of the BC approach. It’s tempting, as a researcher, to say that we need more evidence – of how common, and how severe, abuse of Representation Agreements is. But I wonder – are there also more principled grounds for exploring the RAA approach? Certainly the developments and debates around Article 12 CRPD (discussed previously here and here) emphasise the importance of allowing people to choose and develop their networks of support for decision making – which the RAA would do. It still provides for substituted decisions, which some might still find objectionable, but in my view the framework for these decisions is more person-centred, and hence preferable, to s4 MCA. At the very least, if you’re stuck on ideas of how to approach the Re-Imagining Capacity Challenge (which I’m sure you’re all busy working away on), then it contains interesting food for thought. 

The latest edition of Robert Gordon’s book ‘The British Columbia Representation Agreement Act, Adult Guardianship Act, and Related Statutes’ will be published in June by Carswell Thomson, Ontario. Unfortunately I can’t find a copy for sale in the UK anywhere, or in any UK libraries, but with growing interest in BC personal planning law it surely can’t be long!


  1. Wow, this is a really interesting, thoughtful piece, and I agree wholeheartedly with your values. So I'm almost sorry to have to tell you that it's completely wrong. I would have thought Robert Gordon would know that, too, since I've spoken with him in the past about this, so I'm surprised that he's referenced so extensively in this way.

    I live in British Columbia, and I have been researching and writing on these issues for 15 years. Your analysis has missed two key pieces of BC legislation affecting consent and capacity: The BC Mental Health Act, and the BC Patients Property Act. Both of these "trump" all the other legislation you're citing. e.g. if you look at the 2011 guardianship updates, you'll see that the Mental Health Act is specifically exempted from all of them. What that means in practical terms on the ground is that medical professionals, whenever they disagree with a person or their representative about absolutely anything at all, simply declare the person to be at "risk" of "mental or physical deterioration" ((that's the broad definition of mental illness in our MHA) and by so doing seize control of all decisions for that person indefinitely.

    So, far from being a model of libertarianism, many regard BC as North America's apotheosis for rights stripping.

    You can read more about this on my website at robwipond.com

    Rob Wipond

    1. Nothing is as it seems! I live in Victoria, British Columbia, I am a mental health advocate, and have been one since 2001. In B.C. there have been too many situations where citizens who were incapable and at risk to themselves or others were denied treatment only to harm themselves or others
      Capable citizens have been involuntarily detained and treated (drugged) for refusing to speak with a psychiatrist. The issue is when a capable citizen wants to call their lawyer as is their legal Right under Section 10 of Canada's Charter of Rights and Freedoms.

      Criminals and terrorist enjoy our Charter Right call to lawyer when they break our laws, if police deny them there call to lawyer, then they walk free, but not so for capable citizens in BC being treated as mentally ill. Are medical staff cherry picking their patients? From what I have seen and witnessed I can say it's very possible.

      One case a guy was choking another on a Victoria street as he thought the devil was inside the guy, the police came, and sent both men on thier way, an hour later the same guy was on top of a Brinks truck yelling something abut Jesus, police again came, and this time delivered him to his girlfriend's apartment. Hours later her neighbours were calling 911 as he sexually assaulted her and was trying to kill her! The police then took him to jail! WOW! ..and if that isn't enough, there is the case of Mr. S who was a business man, an author, family man with four daughters who had battled with Canada's tax Agency for over ten years over money he did not owe. He was in the process of writing his book "Canada's Dishonest Tax Police", it sure got lots of attention, the guy's lawyer handed over to tax agents his client-solicitor-privileged-documents" unlawfully according to the law Society of BC, the lawyer left the law firm shortly afterwards and didn't tell his client what he did, or that he left. Five days after promoting his book, two Victoria police officers arrested him, put him in handcuffs, they did not say why, and did not tell him he was beng taken to hospital for a mental health assessment under BC MHA section 28(1).

      Now here is where it gets interesting, in the ER physician's 'Consult Report' the Dr. stated "police brought in Mr. S from Revenue Canada police were worried he was going to do something, I think it's best to get psych consult and go from there."

      The police only gave a verbal report to medical staff. The problem, Mr. S was no where near Revenue Canada, he was at the Law Courts in the process of filing an 810-Peace-Bond against the individual who retrived his documents from his lawyer unlawfully.

      Mr. S asked for his Charter Rights call to lawyer, the ER staff told him "you have no Rights"! "Remove your clothes" "We are going to inhect you with this needle, if you refuse these security will flip you over and inject you the hard way!"

      Now how could anyone possibly defend themselves against professionals 'Acting in Bad Faith'? Sure if professionals Act in Good Faith the average person could accept their actions, but not 'Bad Faith.'

      Visit our web site broadpowers.com I'm on Twitter under broadpowers as well.

      Gordon W. Stewart
      PSWA Canada
      Pacific South Western Advocates
      Victoria, B.C.