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THE VULNERABLE PERSONS THE VULNERABLE PERSONS LIVING WITH A LIVING WITH A
MENTAL DISABILITY ACTMENTAL DISABILITY ACTSubstitute Decision-Making ProvisionsSubstitute Decision-Making Provisions
General VPA Overview and SDM ProvisionsGeneral VPA Overview and SDM Provisions
JoAnne Reinsch, Vulnerable Persons’ CommissionerJoAnne Reinsch, Vulnerable Persons’ Commissioner
Larisa Wydra, Program SpecialistLarisa Wydra, Program Specialist
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Vulnerable Persons Act (VPA) Overview Key Definitions Guiding Principles Role of the VPCO Substitute Decision Maker (SDM) - When can I
apply? Applying for a SDM Duties & Responsibilities of the SDM Other Provisions of the VPA
Key Messages
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THE VULNERABLE PERSONS LIVING WITH A MENTAL DISABILITY ACT
Underlying assumption that individuals living
with a mental disability should have the
opportunity to make their own decisions and
direct their own lives with support if
necessary
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Proclaimed in 1996
Act or law that sets out, protects and ensures the rights of vulnerable persons in Manitoba are respected
Key Provisions: - Guiding Principles- Support Services- Protection & Emergency Intervention- Substitute Decision Making (SDM)
THE VULNERABLE PERSONS LIVING WITH A MENTAL DISABILITY ACT (VPA) - Overview
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Vulnerable Person means an adult living with a mental disability who is in need of assistance to meet his or her basic needs with regard to personal care or management of his or her property.
Mental Disability means significantly impaired intellectual functioning existing concurrently with impaired adaptive behaviour and manifested prior to the age of 18 years (excludes a mental or psychiatric disorder as defined under The Mental Health Act.)
Key Definitions/Terms:
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Incapacity/Unable to make a decision
When she or he is not able to understand
information that is relevant to making a
decision about personal care or the
management of property, or is not able to
appreciate the reasonably foreseeable
consequences of a decision, or lack of one.
Key Definitions/Terms: (contd)
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Support NetworkOne or more persons who provide advice, support, or
assistance to a vulnerable person, and may include:
Vulnerable Person’s Spouse Family Members, and Others Chosen by the Vulnerable Person (can
include paid service/care providers)
Key Definitions/Terms: (contd)
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Supported Decision Making: Vulnerable person enabled to make and
communicate decisions with advice/assistance from a support network.
Substitute Decision Making: Substitute Decision Maker (SDM) makes decision in
the place of vulnerable person.
Key Definitions/Terms: (contd)
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The Five Guiding Principles
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1. Vulnerable persons are presumed to be competent to make their own decisions, unless demonstrated otherwise;
Five Guiding Principles
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2. Vulnerable persons should be encouraged to make their own decisions;
3. The vulnerable person’s support network should be encouraged to assist the vulnerable person in making decisions so as to enhance his or her independence and self-determination;
4. Any assistance with decision making that is provided to a vulnerable person should be provided in a manner which respects the privacy and dignity of the person and should be the least restrictive and least intrusive form of assistance that is appropriate in the circumstances;
Five Guiding Principles (cont’d)
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Five Guiding Principles (cont’d)
5. Substitute decision making should be invoked only as a last resort when a vulnerable person needs decisions to be made and is unable to make these decisions by himself or herself or with the involvement of members of his or her support network.
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Commissioner adjudicates requests for substitute decision makers
Warranted? – a vp, incapable even with asst, decisions to be made, SDM reasonable in circumstances
If so, parameters of the SDM appointment (whom, powers, length, etc.)
Ensure natural justice and procedural fairness occur
**Taking away fundamental right to make decisions/to self-determination**
Role of the Vulnerable Persons Commissioner’s Office
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“When can I apply for a SDM?”
VPA provisions:1. Criteria:
A vulnerable personAn involved support networkIndividual incapable of personal care/managing
property on own or with the involvement of the support network
Decisions to be made
2. Any person may apply….(who) believes there is a need for a SDM
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“Why do I believe the individual needs a SDM?”Some questions to ask oneself:
1. Based on current circumstances, what is the specific reason why I believe the Individual needs a SDM?
2. Have we reached the “only as a last resort” threshold of Principle 5?
3. Through the involvement of family, friends, service providers, are the Individual’s needs and best interests being met?
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SDM Application Process
Step 1 – The Application
Someone believes an adult living with a mental disability needs a substitute decision maker
They send an application to the Office of the
Vulnerable Persons’ Commissioner
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SDM Application Process
Step 2 – Preliminary Investigation
Commissioner’s Office looks at the situation to see whether a substitute decision maker “appears” to be needed
Do a preliminary investigation
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SDM Application ProcessStep 2 – Preliminary Investigation
Looking for: Definition of vulnerable person is met An involved support network Decisions to be made Not able to make decisions even with assistance of
support network If all appear to be true, Commissioner asks a Hearing
Panel to review situation and make a recommendation
Notice is given to all parties involved
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SDM Application Process
Step 3 – Hearing Panel Hearing Panel meets with vulnerable person,
family, and others in support network Ask questions about:
The vulnerable person The help the vulnerable person needs The decisions that need to be made and that the
vulnerable person is not able to make Who the substitute decision maker should be How long
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SDM Application Process
Step 3 – Hearing Panel
Hearing Panel tells Commissioner what they heard and whether they think the vulnerable person needs a substitute decision maker (via written recommendations)
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SDM Application Process
Step 4 – Commissioner’s DecisionCommissioner decides: does the vulnerable person need a substitute
decision maker or not?
Is the individual a vulnerable person?
Incapable of personal care/managing property even with assistance of support network?
Are there decisions to be made?
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SDM Application Process
Step 4 – Commissioner’s DecisionSDM Appointment: Who the substitute decision maker will be For what area – personal care and/or property For what type of decisions For how long the substitute decision maker (only as
long as necessary but not more than 5 years) Terms and conditions (if applicable)
Public Trustee appointed if no one available
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Step 4 – Commissioner’s Decision
All parties who received notice of the application receive notice of the Commissioner’s decision
SDM and vulnerable person receives legal Appointment Document outlining authority
Decision can be appealed to Court of Queen’s Bench – within 30 days
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To perform duties diligently, with honesty and integrity and in good faith To assist a vulnerable person in making decisions To foster independence To encourage participation in decision making Choose the least restrictive and least intrusive course of action Should only take control and make the decision when the vulnerable person is not able to (not able to understand info and appreciate consequences) When making decisions, think about the vulnerable person’s
wishes, values, beliefs Make decisions in the best interest of vulnerable person
SDM Duties:
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Best interest considerations...
Whether vulnerable persons’: Condition/well-being likely to be improved by proposed
health care Condition/well-being likely to be improved without
proposed health care
Whether the benefit outweighs the risk of harm Is less restrictive or less intrusive health care and
reasonable alternative Right to health care information (over-rides other legislation
restricting access)
SDM - Health Care Specific Duties and Issues (where appointed)
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Best Interests
BALANCE
PROTECTION
VS.
LEARNING EXPERIENCE
LEAST RESTRICTIVE
&
LEAST INTRUSIVE
WELL
INFORMED
COMMONSENSE
BENEFITS
VS.
RISKS
SELF-AWARE
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SDM Accounting Duties and Responsibilities
Where appointed with property powers:
File an opening inventory within 6 months Report on true inventory of individual’s property,
debts and liabilities
File annual accounting reports thereafter Report on property, debts, liabilities, receipts and
disbursements
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Medical treatment for primary purpose of research;
Sterilization that is not medically necessary,
Removal of tissue for transplant,
Voluntary admission to a psychiatric facility,
Adoption or guardianship of a child,
Participation in any activity or project whose primary purpose is research
Need court approval to place vulnerable person in developmental centre (excludes respite)
Absolute Exclusions
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Review of Appointment
Towards the end of appointment, a review is undertaken to decide whether a substitute decision maker is still needed;
If so, are the parameters of the appointment still appropriate
Renewed based on current circumstances
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Variation, Termination & Replacement to Substitute Decision Maker Appointment
During the term, if changes are needed, requests can be made to the Commissioner’s Office
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Provisions to make an emergency appointment of a substitute decision maker
30 day appointment
Emergency Substitute Decision Maker
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Other VPA Provisions
Support Services Support Services may be provided (ex.
residential services, counselling, vocational rehabilitation, life skills programs, etc.).
Sets out provisions for an Individual Plan for every vulnerable person receiving support services – a participative approach.
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Protection and Emergency Intervention Duty to Report Abuse and Neglect - mandatory
reporting by service providers, SDM, Committees where one “believes on reasonable grounds… is or likely to be abused or neglected”
Authority to Investigate
Authority for Protective Action
Emergency Intervention
Other VPA Provisions
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Wrap-Up:
Guiding principles
The importance of the support network
Some considerations when thinking about applying for a SDM
Steps of the application and hearing process
The role and duties of the SDM
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For more information on the substitute decision maker
provisionsContact:
Office of the Vulnerable Persons’ Commissioner
305-114 Garry Street
Winnipeg MB R3C 4V7
Telephone: (204)945-5039
Toll Free: 1-800-757-9857