The Hearing Panel Process
The purpose of a hearing panel is to provide the Commissioner with independent and objective recommendations regarding applications related to substitute decision maker appointments.
The hearing panel roster has members located throughout Manitoba and is made up of relatives of adults living with an intellectual disability, lawyers and community members.
When the Commissioner makes a referral, the Hearing Panel Coordinator appoints three members as a hearing panel, who are provided with a copy of the application and the supporting documentation. One member is designated as the presiding member.
The Hearing Panel Coordinator will schedule the hearing and the Commissioner will then issue a notice in writing to the parties of the hearing date and location.
After conducting the hearing, the hearing panel makes recommendations to the Commissioner about:
- whether the criteria respecting the appointment of a substitute decision maker have been met
- who the substitute decision maker should be
- what powers the commissioner should grant to the substitute decision maker; and
- the length and other terms and conditions of the appointment.
Why are hearings necessary?
The decision to appoint a substitute decision maker is a serious one, as it means removing someone’s legal decision making power. The hearing panel is an important way of ensuring the Commissioner has all the information necessary to make a decision.
In Manitoba, the decision to name a substitute decision maker has been removed from the courts and placed in a quasi-judicial office, the Office of the Commissioner for Adults Living with an Intellectual Disability. In other jurisdictions these decisions are made in court. It is important that the process around substitute decision making provide enough information to allow the Commissioner to exercise their critical legal role.
Are hearings always held?
In October 2021, The Adults Living with an Intellectual Disability Act was amended to allow for the appointment of substitute decision maker appointments without holding a hearing panel. This may occur in situations where none of the parties have any concerns. The decision to not hold a hearing is at the Commissioner’s discretion; however, if any of the parties involved in the life of the adult living with an intellectual disability’s requests a hearing, one will be held.
When is the hearing and who is notified?
At least seven days prior to the hearing, all parties will be notified of the date, time, place and purpose of the hearing. Notice of the hearing will be provided to:
- the person for whom the application is made;
- the applicant;
- the proposed substitute decision maker;
- any currently appointed substitute decision maker;
- the person's committee, if any;
- the person's nearest relative; and
- anyone else the Commissioner considers appropriate.
The adult living with an intellectual disability is entitled to be present at the hearing. All other persons given notice and anyone else (such as an interpreter) may attend, with the consent of the person for whom the application is made and/or the hearing panel. People given notice of the hearing who are unable to attend, but would like to participate, should contact the Hearing Panel Coordinator tp discuss further options.
How long before a hearing is scheduled?
A hearing panel will be scheduled after the application is referred to a hearing panel. The actual date of the hearing is determined by the responsiveness and availability of the parties involved.
Note: French Language Services are available upon request. If you wish to present in French, please contact the Hearing Panel Coordinator within 7 days of receiving the Notice of Referral to a Hearing Panel so that the appropriate arrangements can be made in preparation for the hearing date.
Should the individual who is the subject of the application attend the hearing?
Yes, the individual should attend the hearing. The decision made by the Commissioner for Adults Living with an Intellectual Disability may have a significant impact on the rights of the individual; therefore every effort should be made to involve them in the process regardless of their level of understanding.
Where does the hearing take place?
Where practical, hearings are held in the community area where the individual who is the subject of the applications lives. Hearings can also take place virtually when appropriate to allow greater ease and access. Persons given notice of the hearing will have the right to participate on a videoconference, to present information before the hearing panel, and to make oral presentations to the hearing panel. A person may also be represented by another person.
What happens at the hearing?
The hearing is set up to make the individual who is the subject of the application, the applicant and others attending feel comfortable.
In order to get to know the individual and their circumstances, the panel members will ask questions of the individual, the applicant, the support network and others attending the hearing.
Questions may be asked in relation to:
- the reason for the application,
- the decisions currently before the individual,
- the individual’s abilities (what they can do on their own, what type of help they need),
- the degree and nature of involvement from the individual’s support network (family, friends, proposed substitute decision maker, service providers etc…),
- the capability, suitability, and willingness of the proposed substitute decision maker, etc.
Those attending the hearing may present information and are encouraged to do so by attending in person or virtually where possible. The panel will also accept written reports or other documentation from those in attendance.
After the hearing concludes, the panel considers the information presented at the hearing and makes their written recommendations to the Commissioner.
Who may present information or make representations at the hearing?
The individual who is the subject of the application is entitled to present information and/or to be represented at the hearing. In addition, the following persons will be given the opportunity to present information or make representations (preferably orally) at the hearing:
• any person who was given notice of the hearing or the representative of that person; and
• any person who has the consent of the subject of the application or the hearing panel.
Are the proceedings confidential?
Yes. All persons involved in the hearing (both before and after it takes place) must keep all information confidential.
How can I prepare for the hearing?
Those invited to attend the hearing are typically those closest to the individual who is the subject of the application. It is therefore important that the individual, those in the support network and everyone else at the hearing participate to the best of their ability. Everyone will be encouraged to speak up and share their thoughts and views and present other relevant documentation and information.
In preparing for the hearing everyone should think about what they want to say (whether they agree or disagree with the details surrounding the application) and how they would answer questions that may be asked at the hearing (see potential questions noted above). Also if there is any other documentation containing important information or any reference materials that a service provider believes to be relevant, these should be brought to share at the hearing.
What happens after the hearing?
After the hearing, the hearing panel makes written recommendations and provides reasons for their recommendations to the Commissioner. The panel will also forward any documents it has received and considered.
For additional information on the hearing panel process, see Fact Sheet on The Hearing Process.
