An Update on the Role of Section 3 Counsel - Is there a role where the client’s capacity or ability to communicate is compromised?

The role of section 3 counsel under the Substitute Decisions Act, 1992, S. O. 1992 c. 30 (SDA) can present a challenge for those who choose to accept such an appointment even when communication with one’s client is not an issue. When this challenge is compounded by the client being unable to communicate, recent case law suggests that section 3 counsel still has a role to play.

Section 3 of the Substitute Decisions Act, 1992

Section 3(1)(b) of the SDA (the legislation under which s. 3 Counsel are appointed) stipulates that the person whose capacity is in question is deemed to have capacity to retain and instruct counsel. In effect, this means that if section 3 counsel is able to obtain instructions from their client, they are obligated to follow and advocate on their client’s instructions, despite the fact that the client’s capacity may well be compromised. 

Section 3 counsel must remember that a lawyer’s obligation is not to judge the quality of the instructions they receive, but to represent the client’s interests, so long as they accord with the Rules of Professional Conduct and the lawyer’s obligations as an Officer of the Court.