CONTENTS
Monday 16 December 1991
Advocacy Act, 1991, Bill 74, and companion legislation / Loi de 1991 sur l'intervention, projet de loi 74, et les projets de loi qui l'accompagnent
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: Cooper, Mike (Kitchener-Wilmot NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Carter, Jenny (Peterborough NDP)
Chiarelli, Robert (Ottawa West L)
Fletcher, Derek (Guelph NDP)
Harnick, Charles (Willowdale PC)
Mathyssen, Irene (Middlesex NDP)
Mills, Gordon (Durham East NDP)
Poirier, Jean (Prescott and Russell L)
Sorbara, Gregory S. (York Centre L)
Winninger, David (London South NDP)
Substitutions:
Malkowski, Gary (York East NDP) for Mrs Mathyssen
Sullivan, Barbara (Halton Centre L) for Mr Sorbara
Wessenger, Paul (Simcoe Centre NDP) for Mr Mills
Clerk: Freedman, Lisa
Staff: Swift, Susan, Research Officer, Legislative Research Service
The committee met at 1532 in room 151.
ADVOCACY ACT, 1991, AND COMPANION LEGISLATION / LOI DE 1991 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Consideration of Bill 7, An Act to amend the Powers of Attorney Act; Bill 8, An Act respecting Natural Death; Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / Projet de loi 74, Loi concernant la prestation de services d'intervenants en faveur des personnes vulnérables; Bill 108, An Act to provide for the making of Decisions on behalf of Adults concerning the Management of their Property and concerning their Personal Care / Projet de loi 108, Loi prévoyant la prise de décisions au nom d'adultes en ce qui concerne la gestion de leurs biens et le soin de leur personne; Bill 109, An Act respecting Consent to Treatment / Projet de loi 109, Loi concernant le consentement au traitement; and Bill 110, An Act to amend certain Statutes of Ontario consequent upon the enactment of the Consent to Treatment Act, 1991 and the Substitute Decisions Act, 1991 / Projet de loi 110, Loi modifiant certaines lois de l'Ontario par suite de l'adoption de la Loi de 1991 sur le consentement au traitement et de la Loi de 1991 sur la prise de décisions au nom d'autrui.
The Chair: I call this meeting of the standing committee on administration of justice to order. Could we have a motion to put Mr Chiarelli on the subcommittee?
Mrs Sullivan: I would like to move that Mr Chiarelli become the official opposition representative on the subcommittee of the justice committee.
The Chair: Thank you, Mrs Sullivan. All those in favour of putting Mr Chiarelli on the subcommittee? Opposed? Carried.
As the Chair, I would like to welcome Mr Chiarelli to the subcommittee.
Today we will be discussing Bill 108 and Bill 110. I would like to welcome the Attorney General, the Honourable Howard Hampton, to the committee. I guess we will start off with your presentation and then we will discuss whether they want questions right away or you want to have your staff go right through clause-by-clause. You may proceed.
Hon Mr Hampton: Thank you very much, Mr Chair and members of the committee. You will remember I was here once before on these general issues. I am pleased to be here again.
As you know, there are three linked bills on which you will be hearing public comment, Bill 74, which is the Advocacy Act, Bill 108, the Substitute Decisions Act, and Bill 109, the Consent to Treatment Act. I appreciate, and I think you appreciate, the difficulty and the complexity of your important task. These bills address fundamental concerns all three parties have had about the welfare of the most vulnerable people in our society.
Bill 108, the Substitute Decisions Act, for which I am responsible, is a response to issues and problems that have existed for many years and is based on the consensus report of the very broadly based Advisory Committee on Substitute Decision Making for Mentally Incapable Persons, established by the last Conservative government. You can see that we have been working at this process for some time. The implementation of the advisory committee's findings was advanced by the former government, and I now have the honour of refining and introducing the bill.
The bill attempts to answer some very difficult questions you will have to keep in mind as you start to deal with the legislation, questions like, how can we give adults the greatest possible freedom to arrange their property management and personal decision-making prospectively, so that if they become incapable in the future, there will be others they trust to make decisions for them in the way they would have done? How can we be assured that those who are not capable of making choices about their property or personal care have someone who is accountable for the decisions that are made? How can we have safeguards to protect people's fundamental rights without unnecessary and costly procedures?
How can an individual's network of family and friends be encouraged to continue to provide assistance to him or her when he or she becomes mentally incapable of choice? How can this be achieved while protecting people from the financial exploitation, abuse and neglect that is sometimes involved with members of one's own family? How can we stop the financial exploitation and the physical abuse and neglect of people who are not capable of choosing to get themselves out of abusive situations? How can we do so without state intervention in the lives of people who are capable of making their own choices?
Let me briefly review how the Substitute Decisions Act responds to these questions. First, there are some important changes in the law governing property.
There are new safeguards on the making of continuing powers of attorney for property. Now, two witnesses unrelated to the grantor of a power or the attorney and a declaration by the witnesses that they have no reason to believe the grantor is incapable will be required. These provisions are designed to reduce financial exploitation that now takes place using powers of attorney. It is our hope that continuing powers of attorney for property can be an even better means of carrying out their maker's intentions.
There are new procedures for statutory, that is, non-court, guardianship of property of people who are professionally assessed as incapable of managing and who do not object to the public guardian and trustee managing their property for them. There is a right of able and willing spouses, partners and relatives to take over the management of the property from the public guardian and trustee. This is an important role for responsible family members and addresses a major concern about the existing property management provisions of the Mental Health Act.
The unnecessary complexity of the powers of guardians over property has been eliminated.
Finally, greater investigation and oversight authority is given to the public guardian and trustee over guardians and attorneys.
Second, the Substitute Decisions Act addresses personal care decisions. These parts of the bills have attracted the most interest. In part, this is because we as a society have paid so little attention to ensuring that those who have not been capable of making their own decisions have had accountable decision-makers.
The most innovative means of addressing people's needs for substitute decisions is by allowing them to make their own choice through a power of attorney for personal care. In it they may choose their attorneys and make their wishes known about future treatment and care. Those wishes may take the form of an advance medical directive specifying treatment to which they consent and treatment they refuse. People may use their powers of attorney to direct that their care be in accordance with their culture and their religion.
But it is important that powers of attorney for personal care not be a means whereby the grantor loses his or her autonomy and the right to make decisions while capable of doing so. That is why the bill provides that before a power of attorney can take effect as ongoing authority of the attorney to make personal decisions for the grantor, there must be filed with the public guardian and trustee professional assessments finding that the grantor is incapable and a statement from an advocate that the grantor has been visited and does not object to the power coming into force.
1540
Where someone does not or cannot make a power of attorney for personal care and is or becomes incapable, the bill provides for the appointment of a guardian of the person by the court to make decisions the individual is incapable of making. There are thousands of people in Ontario in institutions who are having decisions made for them. These decisions are being made without authority. Are they made for purposes of expediency? Are they principled decisions? We have no idea. We can no longer be passive and expect care givers to carry our burden.
Our freedom to make our own decisions while we can is precious. The definition of incapacity is very important because it limits state interference in people's lives. We must be satisfied that we are not interfering with the right of people who know what they are doing to make decisions different from most of the community. Under the bill:
"A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision."
We must limit our interventions to those that are necessary. The bill provides for the appointment of a guardian to make only those decisions about health care, nutrition, shelter, clothing, hygiene or safety that the individual is incapable of making. It provides for the court to give the guardian those powers that are necessary to carry out the decisions. A full guardianship may only be granted when an individual is incapable of making any of the major types of personal care decisions.
Those seeking to be guardians of the person or property must be suitable as outlined in the act. Partners and relatives who have ongoing contact with the person needing a guardian are preferred under the act. Once again, it is family who are preferred.
Procedures under the act for guardianship are designed to reduce costs and expedite matters where there is no doubt about the need of a person for a guardian or of the fact of incapacity and where no one objects to the guardianship.
It is not sufficient that there be someone to make substitute decisions. Those decisions must be principled. The bill imposes duties on guardians to guide them in the exercise of their powers. These duties reflect the best words can say about the relationship of guardian and the person to whom he or she is responsible. The principle that is paramount is that decisions should reflect the known competent wishes of the person for whom they are made. The paramountcy of this principle is a key feature of all three bills.
One of the saddest situations we repeatedly face today are people who are mentally incapable and at serious risk of harm. They are financially exploited or are physically neglected or abused. We can attempt to deal with these situations from the adult abuse perspective and end up running roughshod over people's rights and causing great harm to the individual we want to help. Under the substitute decisions legislation, we respect the rights of mentally capable adults to make their own choices. However, for the first time we are providing for a means of acting that generally is agreed to be the most sensitive.
If a person is thought to be incapable and at risk of exploitation, neglect or abuse, the public guardian and trustee must investigate and apply for guardianship. The court can order assessments of capacity in the person's home and under the least intrusive circumstances. The court can make the public guardian and trustee temporary guardian with appropriate authority and the most suitable, least intrusive decisions can be made.
The public guardian and trustee is vital to the operation of all three pieces of legislation. The public guardian and trustee is substitute decider of last resort as guardian of property, guardian for personal care and consent to treatment. The public guardian and trustee is necessary in order to protect the integrity of advocates acting under the Advocacy Act. Advocates are not decision-makers for vulnerable people. Advocates are not given and should not have power over vulnerable people. When an advocate finds that a vulnerable person is mentally incapable and is being exploited, neglected or abused, there must be someone to whom the advocate can turn to take action.
The public guardian and trustee is watchdog for financial exploitation, physical abuse and neglect of mentally incapable people. It must investigate allegations. It must force attorneys and guardians who are acting improperly to account. It also validates powers of attorney for personal care that operate like guardianship. The public guardian and trustee informs, educates, advises and assists the public.
Bill 110, for which I am also responsible, makes the changes to statutes that are needed as a consequence of the changes in the three major statutes. For example, it amends the Mental Health Act to repeal the provisions now in that act to govern consent to treatment, because the Consent to Treatment Act will apply to all treatment decisions.
During these public hearings you will be receiving submissions for amendments to the bills from individuals and organizations. Some of the requested amendments will create difficult choices for the committee. For example, the Ontario Friends of Schizophrenics will point out that some people have mental disorders that cause them to have periods during which they are mentally capable and other periods in which they are incapable. Some of the people with this disorder are aware when they are capable that during these periods of incapacity they will refuse all treatment and help. They want to take steps while they are capable to ensure they get the treatment or care they want when they are incapable. The Ontario Friends of Schizophrenics will draw our attention to the fact that there is nothing in the legislation that meets their needs. If am amendment of the kind they suggest is made, we must ensure that it cannot become a tool to coerce people with mental disorders into forced treatment.
The Ontario Association for Community Living will be addressing the committee. The OACL represents about one third of the families of people with mental disabilities. It is concerned about the very concept of guardianship. Similarly, groups like the Advocacy Coalition and seniors' associations will be making other submissions. They may propose legislative amendments to respond to their specific concerns. You must consider them carefully and weigh them against other perspectives that are presented.
From the beginning of the process of developing this legislation, every Attorney General has been open to changes that would improve it without jeopardizing the principles on which it is based. I am honoured to be part of this tradition.
The bills began with representatives of the community organizations acting together on an advisory committee to the Attorney General, the Minister of Health, the Minister of Community and Social Services and the offices responsible for seniors and disability issues. Let me just remind you of those who participated in the Fram committee and the organizations they represented:
Doris Baker from the Ontario Association of Professional Social Workers; David Baker, Advocacy Resource Centre for the Handicapped; Gianni Corini, Adult Protective Services Association of Ontario; Brian Davidson, Canadian Mental Health Association; Dr Patricia Defeudis, Ontario Psychological Association; Howard Epstein, Canadian Civil Liberties Association; David Giuffrida, and before him Dr Tyrone Turner, of the Psychiatric Patient Advocate Office; Dr Stephen Kline, Ontario Medical Association; Ivy St Lawrence, Ontario Advisory Council on Senior Citizens; Carolyn Shushelski, Ontario Hospital Association; Paul Vesa, Canadian Bar Association -- Ontario; Judith Wahl, Advocacy Centre for the Elderly; Rod Walsh, Ontario Association for Community Living.
We should not forget the government representatives: from the Ministry of Health, Dr Barbara Blake, Dr Gilbert Sharpe and Debi Mauro; from the Ministry of Community and Social Services, John Wilson, Sharon McClemont and Peter Wiley; from the office for seniors' issues, Alan McLaughlin; the public trustees, Bert McComiskey and Hugh Paisley; the official guardian, Willson McTavish, assisted by Doug Rutherford; and, of course, the chair of the committee, Stephen Fram, who is seated here to my right.
These public hearings are an essential part of a very open process of designing principled legislation to address very real human problems. The ministry will continue to meet with organizations and to listen. Mr Fram, who is counsel with the ministry, will be available to assist the committee in its work of ensuring that we have the very best and most principled legislation. May I say to the Chair and to all members that if I can be of further assistance to you, I am available to answer questions now, and I will do whatever I can to forward this process.
1550
Mrs Sullivan: Minister, as you know, you are the third minister to present to our committee in relationship to these bills. We concur with your view that they are complicated, and one of the things, of course, that we are very concerned about is the nature of the way in which the bills overlap and fit together. We had felt earlier on that it would have been more useful for the bills to have been put forward in a draft form and used as a consultative document so that the integration of the bills could have been perhaps more efficacious for those who are going to have to apply them later.
We are also extremely concerned, by example, that in the area of advocacy, there is no specific definition, either in your bill where advocacy services are very much a part of the process or in the Consent to Treatment Act or the Advocacy Act, of the role or the mandate of advocates, whether it is in rights advocacy or social advocacy. The guidelines for determining the roles of advocates will be by regulation rather than statutory. Frankly, we feel that because that role, that mandate and the operation and standards for advocacy are so vital in the course of all of these areas, whether it is substitute decision-making, rights advocacy relating to consent or advocacy on systemic issues, that they should be defined.
One of the things we will want to insist on as we proceed through these hearings is that there be a more firm definition of the specific role of the advocate that is laid out for all to see, that it is debated publicly rather than behind closed doors as regulations are made and that vulnerable people themselves who are participating in the debate and discussion have an opportunity to discuss those roles in a public way. Once again, the training and screening of advocates is by regulation in your bills. We see that as a matter of some concern.
You have indicated in your remarks that: "Advocates are not decision-makers for vulnerable people. They are not given and should not have power over vulnerable people." However, you also say, "When an advocate finds that a vulnerable person is mentally incapable," which is a new role for the advocate. We do not understand why, if advocates are not to be decision-makers, that is not specifically defined in the act.
Hon Mr Hampton: I am not sure where you want me to begin, but I will try to begin at the beginning.
First of all, with respect to advocates, you have to appreciate that this is not part of my legislation, and perhaps you should talk further with the Ministry of Citizenship about this. Everyone appreciates, however, the very important role that advocates have to play in ensuring that these three pieces of legislation work well. The role of the advocate is so important that many groups which are vitally concerned with advocates and the work they do ask that they have more time to work within the community as to how advocates will function. That in part is the reason it was left to regulations. Part of this process from beginning to end has been that there has to be ongoing interaction with the community of people out there who will be vitally affected, and that is what the government is trying to do.
To try to arrive now at a precise definition of each and every role an advocate will play would, I think, be very difficult and would not be giving the due respect and confidence to the community that is out there and involved in these issues on an ongoing basis. However, that is something you can and should take up with the Minister of Citizenship at greater length.
With respect to how advocacy fits into this bill, advocates will be forming opinions all the time. I think the important thing to focus on, however, is that advocates will not unilaterally act on what their opinions may be. As I have tried to point out today, once an advocate in a given-fact situation formulates a view of what is happening, that someone may be abused or someone may be exploited, they cannot unilaterally take action. For example, in the scenario I pointed out today, the public trustee must become involved. I think that is the important step.
While we have allowed a great deal of liberty to advocates and while we have not precisely defined all of their functions, the important factor or issue, at least with respect to the Substitute Decisions Act, is that the public guardian and trustee must become involved in a great many of these situations. So, again, the safeguard is there. That is a very large part of the overarching principle involved in these bills: putting safeguards in place so that whether it be an attorney or a guardian, whether they be given a power of attorney, whether they be appointed by the court or whether they be an advocate, everyone is accountable. There are checks and balances in the system to ensure that accountability. The eventual outcome or ultimate goal is to provide the appropriate protection for those people who are most vulnerable.
Mrs Sullivan: Minister, you have spoken about safeguards. One of the things I note is that the bill does not outline the standard of proof that would have to apply in the appointment of substitute decision-makers. Once again, the compendium points out that this will be defined on the basis of a balance of probabilities. That would mean that the probability is that the person is likely to be incompetent, or more likely to be incompetent than not incompetent. However, that is not specifically set out in the bill, and we are quite concerned as to why it has not been set out in the bill.
Hon Mr Hampton: I think we have to recognize that generally in our scheme of law covering issues in these areas, we only specify what the standard shall be when we vary from the balance of probabilities, and we have not varied from that here.
Mrs Sullivan: Would you accept an amendment including the standard of proof required?
Hon Mr Hampton: I think what we have to recognize is that all three bills stand together and all are based upon the balance we have chosen. Before we accept an amendment, we would want to look at how it affects the scheme which runs throughout the three bills.
Mrs Sullivan: I will let the questioning go on, but I suppose I would just underline that we are as concerned about what is being left out as what has been included, and the interrelationship between them, one bill to the other.
1600
Mr Carr: Thank you, Minister, for coming and giving us the information. I was interested in one of the questions in the broader sense with the public guardian and trustee. How many cases would you envision we would be looking at in Ontario in a year? Do you have any guess right now? It would be a guess, I imagine, but ballpark in terms of the number of cases we would suspect may happen. Any idea?
Hon Mr Hampton: We do not, although the thinking that has gone on around this issue is generally that at the front end the office of the public guardian and trustee will be very busy. We have spent a fair amount of time over the last year looking at what additional resources the office of the public guardian and trustee would need in order to meet the case load.
Mr Carr: I was interested in the definition of "incapacity." In defining that, where does the input come from? I suspect it has been from the legal community, but where have we looked for the input with regards to that?
Hon Mr Hampton: Common law. Many of the concepts that we are arguing about in the legislation have been around for some time. They are not new concepts. They are concepts that have been argued about time and time again. So the common law is the source there.
Mr Carr: So we are not looking to define it in terms of this bill. Okay. One other thing with regard to the, for want of a better word, living wills where people decide, is there anything in this piece of legislation that will assist the medical practitioners in fulfilling some of the requirements of people in terms of what their wishes are?
Hon Mr Hampton: I wonder if you could be more specific. If we have, for example, a power of attorney for personal care and the individual sets out that he does not wish to be subjected to certain types of medical treatment and is fairly specific about that, then what would your concern be?
Mr Carr: I was just wondering, when would there be an intervention by, say, an advocate in a situation like that. Before, we had a situation come up where somebody would say, for example, "You don't want treatment if you have a terminal disease." But as you know, it might have been made a few years ago, and now all of a sudden there is some treatment that may assist you. Do you see an advocate jumping in to supersede the will of somebody? Do you see that changing at all?
Hon Mr Hampton: Those kinds of issues are in fact dealt with in the Consent to Treatment Act.
Mr Carr: You do not see anything changing with regard to this?
Hon Mr Hampton: I do not see a problem at this point in time. A great deal of thought has gone into working out how the three bills will work together. Once you get into the scenario you are into, you look to the Consent to Treatment Act for guidance. Physicians would look to the Consent to Treatment Act for guidance as to how they are to interpret and what the requirements are for them.
Mr Carr: As a result, as you know, there has been tremendous interest in these very complex bills with a lot of people coming forward. Do you anticipate many amendments coming forward, and if so, how willing are you to look at some of the amendments?
Hon Mr Hampton: As I have indicated, there are some issues from particular organizations in the community that you are going to have to grapple with and you will have to weigh competing values and competing concerns. I fully expect that some amendments will come out of this committee. I expect there may be vigorous public debate over some amendments that may be proposed by particular organizations and there will likely be vigorous debate within this committee. Whether those amendments eventually are incorporated into the bill or not will depend on those debates.
As I said, I do not believe the legislation you now have before you is the final answer on all these questions. You have a role to play here.
Mr Malkowski: If we look at history, service providers, families and also the persons with disabilities themselves, often the opinions are in conflict or we have conflicting perspectives. Specific to the consumer groups, do you have any feedback from, for example, People First group? Do they have any concerns about the Substitute Decisions Act?
Hon Mr Hampton: As I indicated in my statement, we have received representations, for example, from Ontario Friends of Schizophrenics, the Ontario Association for Community Living and other organizations that are concerned about specific sections or concepts in the bill. I would not tell you that everyone is unanimously happy with the proposed legislation, precisely because what we are trying to do is balance some very difficult social issues. You want the state there as protector of abused and neglected individuals in some circumstances; yet you want to be very mindful that the state does not overstep its bounds.
We give particular institutions and offices in the bill authority and power but we have tried to incorporate in the bill at the same time checks and balances on that authority and that power so that we can guard against the situation where somebody who is given a powerful role under the legislation then abuses it.
In summary, yes, there are groups and organizations which are not completely happy with what we have provided. But over the course of the eight years the Fram committee has been working it is fair to say that almost every possible scenario and issue has been debated back and forth a number of times. The best attempt that can be made has been made to achieve consensus.
Mr Malkowski: The Ontario Association for Community Living is a service provider perspective. The Ontario Friends of Schizophrenics is a family perspective. So what is missing is the consumer group or the persons with disabilities themselves. I just want to make sure we include those consumer groups so that their specific concerns are shared. Hopefully the People First group will be invited to share their perspectives with us on the Substitute Decisions Act.
Hon Mr Hampton: People First have expressed their concerns, and of course one of their concerns is the role of guardians in all this. That is a concern that is shared with OACL, who also take issue with the authority and power the guardians are given under the legislation. I expect you will be hearing from People First.
1610
Mr Chiarelli: You indicated this is the best attempt at the legislation after a number of years. I just wondered if perhaps the best attempt still misses the mark. I say that with a sense of being constructive. When the Minister of Health was here last week, her comments were replete with qualifications. There are concerns about this particular matter. There are alternative ways to do that particular function or what have you.
Today in your comments you also raise probably more questions than you answer, and what concerns me is that we are dealing with a bill that has had second reading. We are dealing with a real live wire here. I think there are too many unanswered questions to be dealing with a live bill.
I had suggested to the Minister of Health that perhaps the bill should be withdrawn and brought back immediately to this committee as a draft bill rather than as a bill some people perceive as a bit like Russian roulette -- a gun is at their heads and something is going to be passed. There are just too many amendments and too much time to gather the pieces to make any sense.
For example, in your remarks today, I really think it is unacceptable at this stage that the Attorney General could come before a committee with this type of legislation and indicate that we still have to create a precise definition of "advocate." If you are not prepared to put a definition of "advocate" on the table when we are beyond second reading at committee clause-by-clause stage, I think it is irresponsible, because we cannot go any further without your providing that definition.
You raised concerns, for example, of the Ontario Friends of Schizophrenics. I want to know from you, as the Attorney General, whether you have provided a satisfactory answer to these people for their concerns. Can you tell me whether or not you feel this legislation properly answers their concerns?
Hon Mr Hampton: Dealing with the issues as you have raised them, first of all, your indication that perhaps we should go forward with draft legislation and open up matters for another round of consultation, I only want to tell you again that there have been eight years of consultation around these issues and that consultation has been fruitful.
However, you can consult probably into the next decade and some of these issues will not come to a head and will not be worked out until you are presented with live legislation. Then groups and organizations will make the compromises that are necessary. I make no apology for that. There are compromises that have to be made in these bills simply because we are dealing with some very important but competing interests and competing values. You may differ with me and with others in terms of our judgement, but our judgement is and has been that now is the time to go forward with legislation and try to work out the compromises that will always have to be made.
Again, with respect to advocates your judgement may be different. You are entitled to that. But the message we have heard loud and clear from the community groups is that they want to work out, in the regulations, what the roles and what the context will be in which advocates work. We are doing our best there to meet the expectations and the requests of the communities that are most vitally concerned with how advocates shall work and what their realm of responsibility shall be.
Finally, with respect to this legislation, I can say to you that we are more than reasonably confident that the scheme of this legislation meets the expectations of the community at large with respect to the protection of vulnerable people and with respect to guarding against their abuse and their neglect. There may be -- I have indicated this in my opening statement -- particular community issues or particular instances where the balance of the compromise may change slightly, and that is a role for this committee.
Sometimes when we bring forward legislation and say, "This is it, this is the legislation, we want it passed," we are criticized for not being open to compromise and to considering other points of view. Here we are bringing forward what I believe to be very good, very thoughtful legislation, but we are saying to you there is still some room for compromise, there is still some room for thought and for changing some of the balances. That, to me, does not indicate the legislation is flawed. But you and I may differ on our judgement there.
Mr Chiarelli: I guess we differ. My opinion is that it is very difficult to say it is very good legislation at this point because there are so many holes still to fill in, such as the definition of "advocate." What I want to do is suggest to you and your fellow ministers in the government that we have just recently set a precedent in this place with the health professions legislation. You well know how that legislation was initiated and that in fact it went over the life of three governments. That was introduced by way of draft legislation; the legislation was subsequently introduced. It was a very slow, meticulous process. There was a tremendous amount of consultation.
There was a process of consultation by different segments of the health professionals out in the field. That process worked quite successfully and a lot of the problems were ironed out in the process. I think the previous governments can take credit for that. I think your government can take credit for it because you took it over and completed it and refined it. All I suggest to you is that I believe we are looking at legislation that perhaps is more significant, much more complicated and certainly much more personal and emotional to the people of Ontario.
I suggest that you will be doing yourself a favour as a government, because I think you are walking on a floor of mud here. You are going to start sinking in it as soon as you get into specifics and clause-by-clause. Most particularly, I want to bring to your attention the process that you well know we go through on clause-by-clause analysis of legislation. I want you to anticipate what we will be doing in clause-by-clause of this legislation. We will almost have to do clause-by-clause of three bills at the same time, they are so interrelated. You are going to have to find a process that is new and different in many respects, dealing with three bills at the same time.
I suggest to you, if you are not prepared to withdraw the legislation, that you be prepared to give assurances that there is going to be a cooling-off period or what have you, after we have had clause-by-clause, for people to respond. I am not sure at this point that we have the ability in this committee to juggle all those bills at the same time. It is very complicated legislation. The process, I think, will be scary to people. The people who are concerned now, I believe, will be more concerned after clause-by-clause, in spite of the amendment process and the consultation process.
In conclusion, I feel there are too many gaps in your legislation. The legislation leaves too much to be done by regulation. You know that regulations are done behind closed doors, they are done in cabinet and they can be changed without notice. You are dealing with very significant components of the legislation. The definition of "advocate," for example, goes to the very heart of this legislation. What you are saying is that even if you provide us with the draft definition, which I understand you have not done, and it is passed, the government can change its mind the next day by regulation and redefine it.
I raise some cautions here not because I like or dislike this bill. I am concerned about the people who are interested in this bill. I am concerned about the process. If you are simply going to proceed with this legislation in the normal course and have public consultations and clause-by-clause, pass the legislation and then pass significant regulations afterwards, then I think you are doing an injustice to a lot of people interested in this issue.
Hon Mr Hampton: If I can respond, Mr Chiarelli refers to the need for draft legislation and I would simply like to point out that when the committee prepared the report at the end of 1987, it included in its final report draft legislation. So in fact draft legislation has been available for review since the beginning of 1988, almost four years ago.
1620
Mr Chiarelli: Of which you just became aware. Think of the public. You are the Attorney General.
Mrs Sullivan: I would like to point out that the draft legislation related only to the one bill that the Attorney General is speaking about now, not to all of the three interrelated pieces of legislation.
Hon Mr Hampton: Again, draft legislation has been available since 1988 and it is draft legislation, at least from the perspective of the Ministry of the Attorney General, that has drawn a great deal of comment and discussion. I simply point out to both members of the opposition that their call for draft legislation, at least from the Ministry of the Attorney General's perspective, was answered four years ago.
Mr Chiarelli wants to come back to the issue of advocates, and I say to him again, in responding in the way we have on the issue of advocates, we are merely responding to requests that have come from the community that advocates and the role that advocates are to perform be things put into action by means of regulations so that they can be dealt with in the most flexible manner possible. You may object to that. The government is, as I say, merely responding as best it can to requests that have come from people vitally concerned in the community. I think that is only appropriate, given the nature of the legislation we are dealing with.
Mr Chiarelli: I would ask you another question. Would you explain to me what these two sentences mean? I am quoting from your remarks: "Advocates are not given and should not have power over vulnerable people. When an advocate finds that a vulnerable person is mentally incapable and is being exploited, neglected or abused, there must be someone to whom the advocate can turn to take action." What do you mean by, "When an advocate finds that"?
Hon Mr Hampton: As I indicated earlier, advocates are not given in this legislative scheme the power to make substitute decisions. Advocates are just that: Their role in this scheme is to inquire, to investigate and to act as someone who is on the side of or acting in the interests of a vulnerable person. But there is a clear separation of duty and authority.
They investigate, they inquire. If they discover a situation which indicates there is neglect, there is abuse, they then do not have the unilateral power to act. They must refer to the public guardian and trustee, or they must look to the family to see if there is someone who is able and prepared to act there. That is the role of the advocate in this system. They are not usurping the role of the public guardian and trustee. They are not usurping the role of an attorney. They are, as the term indicates, advocates.
Mr Chiarelli: Could I ask a question. I am not trying to be unduly technical or difficult, but I am looking at your words and I am going to suggest to you that maybe the explanation you just gave suggests to me that perhaps the wording in your remarks is not exactly precise.
You indicate here, "When an advocate finds that a person is mentally incapable...." Do you really mean to say when an advocate finds that a vulnerable person "may be" or "appears to be," because then you go on to say, "then there must be someone to whom an advocate can turn to take action." So either there is a determination or there are a set of facts which arise, which creates some questions in the minds of the advocate which dictate to the advocate that he or she should direct that person to somebody else. Now what is it exactly that you mean by those two sentences?
Hon Mr Hampton: Obviously when an advocate encounters a given situation, he will form his own conclusions. We have to recognize that. That is, I think, in practical terms how some of these scenarios will work out. The important distinction to make is that advocates do not have the statutory authority to make a finding that someone is incapable. Though they may, as advocates, form that conclusion in their own mind, they do not have the authority or the power under the legislation to make a finding within the terms of the legislation.
Second, to make the distinction again, they do not have the power or the authority that the public guardian and trustee would have or that an attorney for personal care or a court-appointed guardian would have. That is the distinction; they are advocates.
They are not given the authority that a medical doctor might be given, they are not given the authority that some other assessor would be given, but in the real workings of the real world, they will undoubtedly form their own conclusions in given scenarios and they will act on those conclusions in terms of going to the public guardian and trustee or in terms of going to someone else who is given authority under the legislative scheme.
Mr Chiarelli: I have a specific question and then I have a more general and a process question. First of all, can an advocate initiate an incompetency proceeding?
Hon Mr Hampton: A court proceeding?
Mr Chiarelli: Whatever process would be established under the legislation ultimately; probably a court, yes.
Hon Mr Hampton: The scenario I want to look at is this: If an advocate enters an institution and encounters a given situation, can he directly -- is that what you are saying, "Can he directly"?
Mr Chiarelli: Yes.
Hon Mr Hampton: No, they cannot. That is not their role.
Mr Chiarelli: Who can initiate an incompetency proceeding?
Hon Mr Hampton: The public guardian and trustee. Again, if you followed the remarks I have made, the role of the public guardian and trustee is very important. The public guardian and trustee's office has an important role to play in ensuring that the rights of vulnerable people are observed and respected. It is a very important role in terms of ensuring that attorneys and guardians live up to the powers given to them and do not abuse them or do not extend them. It is a very important role.
Mr Chiarelli: I asked you a specific question and you gave a specific answer. The answer had to do with the definition of an advocate and the advocate's role, which is yet to be defined by regulation. Is that correct? In which case, if it has yet to be defined, how can you be so definitive with your answer?
1630
Hon Mr Hampton: I can be definitive in terms of what types of statutory powers and authority an advocate will have. How advocates will come to work in a practical sense is what will be left to the regulations. Again, I think it is very important that you focus on the statutory power and authority that the office of the public guardian and trustee will have. It is important that you recognize the general role the advocates will have.
How that works out in a practical sense is something that will be left to the regulations. That is the request we have had from community groups, that we do it that way, because they see the need for some flexibility in coming to terms with the practical, everyday work of advocates.
Mr Chiarelli: I am going to leave you with one further comment. I know there are other people who do want to ask questions.
I believe it is irresponsible to deal with this legislation without draft regulations. The two are so intertwined. Regulations, as you know, have the force of law and traditionally are to do with minor process and minor changes to legislation. As I understand it, the regulations that will be applicable to this legislation will be very significant in terms of defining what happens with the legislation itself. Therefore, I want to ask you: Yes or no, are you prepared to provide draft regulations that could be used at the time this committee would be doing clause-by-clause?
Hon Mr Hampton: I have no responsibility with respect to the Advocacy Act, and that is really an issue you should take up with the Minister of Citizenship. But there are no regulations required under this bill I have presented here today.
Mr Chiarelli: So we are talking about three bills. I want to know who has carriage of the three bills. Obviously we cannot be dealing with them in isolation. There has to be some sort of co-ordinating person.
I asked a specific question about regulations, and you are saying, "That is another minister." We have had three ministers in, and I want to know how you are co-ordinating it and how you are making your decisions internally. In point of fact, how are we going to be able to do clause-by-clause with three different ministers and three different bills?
Hon Mr Hampton: Mr Chiarelli, I indicated to you when I began my statements that you are going to have to work hard on this legislation. There are difficult issues here. I cannot make them any easier for you, but I can tell you this: If you have a question specifically with respect to the Advocacy Act, which is what I think you are giving to me now, you should address that to the Minister of Citizenship and her parliamentary assistant.
The Chair: Thank you, Mr Chiarelli. I might remind you that the minister, Elaine Ziemba, will be back here after all the presentations to wrap this all up.
Mr Carr: Attorney General, the problem I think we are getting at is a concern for the powers the advocates will have. When the Minister of Health was in, she talked about it and said that she really was not looking for the advocates to assist or become involved where there has been a family involved, but if my memory serves me correctly, she said that in most cases it will be where there has not been any family or friends and so on.
One of the concerns many individual groups have is that all of a sudden some of the family or friends will be pushed aside. For example, an advocate comes into, let's say, a seniors' home and makes a determination that an individual is not receiving the care that he or she needs, and becomes involved where family and friends have been involved in doing it, and for whatever reason makes a determination that there is some problem there. That is why I was interested in trying to get at the number of cases you are looking at, whether we are looking at a massive amount of cases, and when you do not know, it makes it very difficult.
I would have thought that when we put legislation together, we knew -- not specific numbers, but that there was a real concern out there for this piece of legislation, and I am not getting that. How are you going to alleviate the fears of people who are seeing this as intervention into the personal affairs of an individual and, as Attorney General, what assurances can you give to people that this is not your intention and is not what you are trying to do with these?
Hon Mr Hampton: Your specific concern here is covered under the Advocacy Act. But generally, let me make this comment.
I agree with the Minister of Health that advocates will not usually become involved in situations where there are members of the family who have been acting or are prepared to act on behalf of a vulnerable individual. None the less, there may be situations where advocates will become involved, because advocates may, in the course of doing their work, become aware of someone who is a vulnerable individual who may be neglected and who may be abused or exploited, even though family members are involved in the situation. An advocate in that situation would refer such a situation to the public guardian and trustee. Remember that part of the role of the public guardian and trustee is to ensure that individuals who are acting under a power of attorney or individuals who are acting as guardians be held to account.
There have to be checks and balances in this system. But I would subscribe to the view the Minister of Health has indicated, that ordinarily you would not see advocates involved in a situation where members of the family are prepared to act and have been acting.
Mr Carr: In terms of the advocates, they have a tremendous amount of power. You say they do not, but they do because they can then go to the guardian trustee.
With regard to their power, from a legal standpoint, what safeguards are there? For example, if somebody becomes involved -- using the example in a relative's case -- and says there is a problem, what safeguards are there, through any of the legislation, that the advocate can be held responsible for his or her actions if he or she acts improperly? Are there any safeguards, or how do you see that working, in terms of what happens if we have an advocate who does something we disagree with, or I disagree with something with my family or whatever? What are the procedures and how long do you see that taking, going through to fruition?
Hon Mr Hampton: Once again, you are dealing with an issue that is dealt with specifically in the Advocacy Act. There will be an advocacy commission that will oversee the role and the function of advocates, but I want to point out to you again, and I gather you and I have some disagreement over this: Advocates do not have authority or power with respect to someone who is acting as an attorney or someone who is acting as a guardian.
They can report a factual finding from their part. They will have powers of entry, for example, to enter a rooming house and to see if someone is able to take care of himself or if in fact someone who is supposed to be acting on his behalf is acting to take care of him. They can make a report. That is it. In that report they can report what they have seen and what they have observed, but that is it. That is the limit on their power.
1640
Mr Carr: You are right that that is in terms of what they are capable of doing. The problem is, though, and I was thinking more from a legal standpoint as Attorney General, what safeguards would be there against some of the powers of these individuals if, for example, somebody believes that because what will transpire is that action will take place as a result of them going in and looking at a situation. The big concern is that these people are going to have a tremendous amount of power. You are saying that they will not, but from a legal standpoint, what will be the safeguard so that that individual will be held accountable for his or her actions? What would the procedures be?
Hon Mr Hampton: Those are covered under the Advocacy Act.
Mr Carr: Which is what? Do you know offhand?
Hon Mr Hampton: No. I do not have all of the details on how the Advocacy Act deals with it, but there is an advocacy commission developed under the Advocacy Act which sets out how an advocate can be guided in his or her work by the advocacy commission. That is something you should really ask of the parliamentary assistant to the Minister of Citizenship or of the Minister of Citizenship, since they have had the overwhelming role in the drafting of that legislation.
Mr Carr: But, as you know as Attorney General, you have the difficult task of overseeing all legislation from a legal standpoint. In your opinion as Attorney General, do you think the safeguards are there as it is written now? That is what I am asking. Are you confident the safeguards are there?
Hon Mr Hampton: I have already noted that you and I have a disagreement over the power and authority advocates will have. I think your estimation of the power and authority that advocates are granted is somewhat inflated. I think that is the source of our disagreement here. However, in terms of what advocates can do and in terms of there being an overseer, a check and a balance in the system to deal with advocates, I believe the advocacy commission will adequately deal with that. That is one of the primary reasons why we will have an advocacy commission.
Mr Carr: When you talk about the power of entry, for example in a rooming house, would that include private homes as well? For example, if my mother lived with me and I was looking after her, for argument's sake, and some neighbour said that there is a problem there, would advocates would have full authority?
Hon Mr Hampton: Again, that is all dealt with in the Advocacy Act. If you want to address those questions specifically, you should go through the Advocacy Act and take it up with the Minister of Citizenship.
Mr Carr: When we dealt with the minister on that, there were some legal situations that I do not think we got any clear answers on. I was just hoping that as Attorney General from a legal standpoint -- but you are right. You have said that a couple of times so we will do that and address it with her as we go back.
The problem was that I was not all that confident in the answers we got, so as we are dealing with these bills altogether, we are trying to impress upon you where some of the concerns are just so you know, because that was what some of the public concerns are. They are not my fears, because I have not formulated opinions. They are just some of the fears we have been receiving from the public. Hopefully, as we try to look at all these bills together, you will be able to look at it as well from that standpoint and appreciate where some of the concerns are coming, because it is a complex issue. When we say, "These are some of the concerns," it is from that standpoint.
That is basically all I have for now, Mr Chair.
Ms Carter: I think these are good pieces of legislation. The thrust in all of them is to give the power of decision to the vulnerable person, the person who is affected, and I think that is the direction in which we should be going. However, I just want to raise one particular case that was brought to me in my constituency that puzzled me slightly. I wonder if the Attorney General could throw any light on it.
This person had a relative who was in a mental institution and had been there for many years so was presumably deemed incapable. But there had already been a change in the way she was treated, and this constituent seemed to think that we had already passed some legislation that had affected this, although of course obviously we have not. We are still debating the legislation. This person had I think it was $100 a month allowance and so many cigarettes doled out so often. There had been a change and the institution had abdicated responsibility for this, gave her all her money at the beginning of the period, allowed her to receive unlimited quantities of cigarettes and to smoke them whenever she wanted. The relative was very concerned that this person would damage her health and in effect kill herself eventually.
First of all, I am not sure what has changed. I do not think this legislation is going to give rise to that kind of situation, but supposing this situation does arise, as it obviously had in this case, would the family member have recourse by applying to become a guardian and to decide what that person would be allowed to do? Is it up to the institution? Does the institution have the power to regulate those things, or what is the situation?
Hon Mr Hampton: The family member would have the opportunity under this legislation to apply to become a guardian.
Ms Carter: So in fact, instead of being the cause of the anxiety he is bringing to me, this legislation could provide the answer to it.
Hon Mr Hampton: Part of the problem we have had is that in Ontario we have many individuals who are institutionalized and many of these decisions are now made or have been made by institutions, with no particular guidelines and no particular regulatory scheme for addressing what may be the desires of the individual for whom the decision is being made or what may be in his or her best interests.
Ms Carter: If this institutionalized person decided that she in fact wanted to spend all her money at once to smoke unlimited cigarettes, does that now become her right or would she be deemed incapable and restrained from doing this?
Hon Mr Hampton: That would be a factual situation of determining in this particular instance if the person is indeed incapable. The legislative scheme envisages, conceptually, situations where someone may be deemed to be capable for the purposes of some decisions and not capable with respect to others. That would be something that would have to be factually determined based on the circumstances.
Mrs Sullivan: I think we spend a lot of time on the advocacy portion, while advocacy and advocates are only included in about three sections of your bill. Because of the new conceptual implementation and involvement of advocates in a very formal way, there is interest in how you see advocates folding in, and the words that you spoke today led us to believe that the intent was different from what is included in your bill in terms of the role of the advocate in your bill. I am going to go on to another thing about your bill, but it seems to me frankly that the advocates were plunked in on the substitute decisions bill after the substitute decisions bill was written. That is just the way it looks.
Anyhow, I want to go on to a couple of other questions relating to substitute decision-making. First of all, in section 56, one of the issues which is discussed in that area and for which the guardian will not have the power of making decisions on behalf of the person he is representing relates to research.
We know that when you are dealing with people who are ill or who may not have the full understanding relating to the procedures that would be used for research matters and so on that frequently, even with the person who has no incapacity, it may be difficult to explain what the process would be, what the relationship would be so that the people could participate as part of a pool, whether it is reporting of statistical data or whether it is other information.
I went back to the Fram report, as a matter of fact, and noted that in the report originally, which is where this section came from, the report said:
"The committee believes it should be made abundantly clear in the legislation that a guardian with authority to give or refuse consent to therapeutic treatment should not have the authority thereby to consent to the involvement of the person under guardianship in any scientific research or experimentation. However, the committee believes that some scientific research or experimentation may be of such benefit to the individual or to classes of person who are mentally incapable, and at the same time of such low risk to those involved, that an absolute bar should not be imposed."
1650
I thought that was very interesting. I have been speaking with Alzheimer's patients and with people who are involved in looking (a) to find the cause of Alzheimer's disease and (b) hopefully to find something to assist us in reaching a cure. We know that now one in four, 25% of people over 80 suffer from Alzheimer's disease. We have an aging population. What the people from that organization say to me is that they are very concerned that with the very strict limitation on research -- because it is not defined in any broad kind of a way; it is not statistical, it is just there, "No, you can't consent" -- they believe that the research in the Alzheimer's field will be delayed by at least 20 years, that what we will have to be doing now is getting people who are middle-aged to consent through a power of attorney for treatment if they ultimately succumb to Alzheimer's.
I would be interested in knowing why the recommendation and discussion relating to low-risk research, to recording of data and information and so on, that was recommended in the Fram report is not reflected at all in the legislation. I know that in this kind of legislation -- we have talked about it before -- we are talking about a broad range of people in terms of what is affecting them, why they may not be capable, where they need to have advocates working on their behalf and so on. The fact is that the range is so broad that creates some of the problems we are dealing with. But I was interested in knowing why there would not have even been an opportunity for legislation to allow perhaps a less invasive kind of research or statistical gathering or whatever.
Hon Mr Hampton: Let me first of all deal with your first assertion that somehow advocates were plunked into the substitute-decision-making legislation. If you look at section 45 of the draft legislation, which dates from 1988, you will see there that how an advocate will work in terms of a power of attorney, etc, is part of the draft legislation. How advocates would work in terms of a Substitute Decisions Act was something that has been thought about very actively for at least the last four years and in fact was part of the draft legislation.
For your more technical question, Mr Fram should answer that because this has been part of his work for the last 10 years and he is very well acquainted with the particular issue you raise.
Mr Fram: As noted, we were very concerned in the advisory committee report about experimentation on disabled people, mentally incapable people. We put in recommendations which we were not totally happy with, but we did not have the ability to do any better than that at the time we were doing the advisory committee report. When we were drafting the legislation, the Minister of Health was very concerned to put experimentation and research on a much better footing than the ethics committees that now exist in the hospitals, because, as you know, it is very difficult for an ethics committee to turn down the chance for its facility to do research when the money is coming to its medical facility, and that is a dilemma.
As the Minister of Health announced last week, David Weisstub has been appointed, commencing last July, to do an examination of the research aspect. It is hoped that will be built into the legislation before it leaves here. We put procedure in here, which to physicians is something other than statistical analysis. A procedure is something where consent is necessary, where there is a touching involved. The physicians are not yet happy. They think procedure should be softer than that. Hopefully by the time we are doing clause-by-clause, we will have something better to replace this with than this bar. I have talked to the Ontario Medical Association and the Alzheimer society about it. They have expressed their concern, as you have, about what we have here.
Mrs Sullivan: You are expecting then to have quite a substantive and substantial amendment relating to research work included as part of this bill?
Mr Fram: Yes.
Mrs Sullivan: I also wanted to review, in terms of the changing nature of guardianship and personal care guardianship, the nature of some of the things that have been identified as necessary for these bills to proceed. One is that people may be competent for some decisions at some times and not competent for other decisions at other times. There may be, as a result of a course of treatment or removal from an environmental effect or whatever, a change in the whole nature of the competency. One of the things we see here is a kind of bureaucratic approach, in a way, to the guardianship but also a bureaucratic approach to the removal of a guardianship.
I wonder if you would just address questions relating to removal of guardianships. How might that guardianship be released? If there is a determination that perhaps a greater skill level or level of understanding is attained, is that when a guardianship would come off? Would the application once again be the bureaucratic, legalistic court method? Have you spent as much time in identifying the release of the guardianship and the process for release as you have in getting it on there in the first place?
Hon Mr Hampton: Since the questions now seem to be becoming more and more technical in nature, and this is really Mr Fram's area of expertise -- as I pointed out, he has spent the last 10 years of his life working in this area, perhaps it is most appropriate that I leave and Mr Fram be allowed to provide everyone with his great resource of knowledge and experience in this area.
Mrs Sullivan: Oh, you stay Howie. Come on, I thought you were going be here for a whole other hour.
Mr Carr: You might learn something, Howard.
Mr Poirier: Are you appointing Mr Fram as your guardian?
Hon Mr Hampton: For the purposes of this legislation, he has been my guardian for the last year. You would do well to adopt him as well.
The Chair: Thank you, Mr Hampton, for taking the time out of your busy schedule to be here today.
Hon Mr Hampton: Good luck, Steve.
1700
Mr Fram: Maybe I should start at the beginning. The idea of the establishment of a guardianship in the report is to try and use the courts as little as possible, only in their hearing capacity when there is something that is disputed, because courts are terribly bad when there are not people presenting arguments on both sides. They are a means of deciding disputes between people. They function very well in that way. So at the committee stage we said, let's try and avoid having court hearings with people drawn in when there is in fact only one party to the proceeding and there is no objection.
A guardianship can take place when a family member has an assessment done on the person who is incapable. The assessment is done by an assessor, by which we mean somebody trained to do mental capacity assessments. This assessment then forms part of an application. The application is sent to the public guardian and trustee for review. If the person is appropriate and if the guardianship plan, by which we mean where is the person going to be, what kind of treatments are contemplated, what kind of care is the person going to get, what is the level of need of the individuals, if that is in place, if there is no objection from the family, the other people who get notice, if the advocate goes out and visits the person alleged to be incapable, explains what it is about and says, "Do you want to fight this? You can do that. I can help you if you want to," and if there is no objection by the person to the process -- sometimes the objection may be that it is Betty who wants to be guardian and really it should be Bill, who the person is close to, and that kind of thing can be picked up by an advocate as well -- then all the paper, along with the advocate's visit, is sent to the public guardian and trustee. If there is no objection there, no objection from the family, then the court process goes before a judge. If the judge does not find anything wrong with it, the judge will sign the order.
Going the other way is just the same. Terminating an application can be by the person saying, "Hey, I want the ability to make my decisions." If the person gets an assessor to say this person is capable of making that kind of decision, that document is filed and an advocate comes to visit the person. If the person wants to get rid of the guardian, those papers are filed and, if there is nobody else objecting, that is the end of the guardianship.
Mrs Sullivan: And if someone objects?
Mr Fram: If someone objects, the person who objects is going to have to prove that the person who had or has a guardian is incapable. If somebody wants to get out, the pressure is on those who want to keep the guardianship in place.
Mrs Sullivan: And another incapacity hearing or assessment would have to be done at that time.
Mr Fram: That is right.
Mrs Sullivan: As well, I wanted to explore with you the question of wishes. I think it in is section 63 that the guardian has to make decisions based on the person's wishes. How do you define "wishes"?
Mr Fram: We do not define the term "wishes."
Mrs Sullivan: That is why I asked you.
Mr Fram: We were searching around for a word. People in all of this medical literature have been searching around for a word. If you use the word "want," it is something connected with "will," and if you have "intentions" -- each of those terms gives rise to its own problems. The term "wish" is that form of instruction that can come up when people talk about their lives with each other. It is the conversation you have with your intimate friend when you say: "Gee, I've just watched Betty's grandmother deteriorate. If that happened to me, here's what I would want to happen and not happen."
It is an interesting word because it is that level of explanation of what we expect, we hope will happen to us if certain things take place. It is an interesting word, but it is the closest we have to that kind of concept of when we explain ourselves to our intimate friends.
Mrs Sullivan: I think that both in this piece of legislation and in the consent act, we are balancing the wishes of the person involved, the patient usually, against the best interests, someone else's judgement. "Best interests" is quite specifically defined in the consent bill and, I believe, in the Mental Health Act before that, certainly in the common law. "Wishes" is not defined.
The question is, can the wish change over time? Were circumstances different in a hypothetical movement, say, while the power of attorney was in existence? Would the guardian or the attorney for personal care have the right and ability to assume a wish that had not been expressed, that might have changed but because circumstances had changed, perhaps medical treatment had improved, perhaps a facility had changed in the services that it offered -- I find that word very difficult and I think that as people who are looking at the act see it, they will see it as difficult too.
I have a woman from my constituency who called and said: "I don't know what this means. My mother said to me a month ago, `I want to go home.' We brought her home and she said, when we got her there, `I want to go home.'"
Mr Fram: An Alzheimer's case.
Mrs Sullivan: She was expressing a wish. It bore a relationship very much to a decision that the family had made but no relationship to the competence of the person. I am having trouble with the word "wishes." I think other people are too, particularly when there is definition of "best interests."
Mr Fram: I think we are talking about competent wishes in terms of determining what your attorney or your guardian does. It seems to be a feature of Alzheimer's disease --
Mrs Sullivan: With stroke patients.
Mr Fram: -- and stroke patients that there is a perseveration. People repeat the same words, "I want to go home," and it does not have a relationship to a factual situation. But in fact, determining the competent wishes -- and that is why we turn to family first. That is why the bill talks about creating your attorney for personal care, because it is expected that people will choose those they trust best.
In talking to the former public trustee, Bert McComiskey, when we were dealing with the matter in the advisory committee, he said: "No, I have nine children. There is only one of my children that I would trust to be my attorney for personal care and that's the youngest. That is the only one who really knows what I would want in any circumstance."
As I have gone through this, I have said to myself, "Who, after my wife, would I choose? Is there anybody I know and have expressed myself to so intimately?" As you get on and your closest friends die, it becomes even more difficult. That is why this is here.
1710
Mrs Sullivan: I guess the other thing we have not talked about at all relates to children and the role of this act -- and I do not think we should pursue it today, because we are talking a lot about consent and so on and it might be better for clause-by-clause -- but the situation of parents who have died, the guardianship role here under this act in comparison to some of the other acts. That is something that certainly people want to explore at some point.
Mr Carr: In application, what, in terms of time frame, are you looking at from beginning to end? How long do you think it will take?
Mr Fram: I am not the person to ask really. The committee completed its report in 1987. There was a study after to see what people thought about the report. Bernard Starkman was retained for a year and went around with the report and asked various organizations what they thought about it. That was after the beginning of the last government, and years sort of went by in which it seemed to have gone to sleep. It was put on the back burner and would come back to life as various community groups said, "Do it now," to the government of the time. It has been very difficult to know.
As well, resources are needed in order to bring these acts -- advocacy and substitute decisions -- into place and time will be needed to bring into place an advocacy commission, a public guardian and trustee's office with the ability to do the duties that are imposed. It is really difficult. Certainly I cannot imagine the act being in force before the beginning of 1993.
Mr Carr: I want to get on that, although I am interested in an application for guardianship. By the time it is made and completed, how long will we be looking at for that?
Mr Fram: I would guess it would be in a couple of months if uncontested; for ever if it is contested.
Mr Carr: Yes, because then we go into the courts.
Mr Fram: In fact, if you talk to groups for the disabled, that is exactly what is intended, that it should be very difficult. If someone wants to fight for his capacity to make his own decisions, it should be very difficult to take that right away from him. On the other hand, when people do not want to fight and the facts are there, that is when they need a substitute decision-maker. That is very deliberate, when I say that. That was the intention of the advisory committee and it is perpetuated in the act.
Mr Carr: With all the safeguards that are built in, with all the people who need to be advised, that is what you are saying, you are probably looking at about two months if there are no problems, if they go through and there is no disagreement at all and that is what we are looking at.
Just a ballpark figure again, what number of cases do you anticipate will be contested? Is it something where most of them will not be, or do you think most of them will be?
Mr Fram: We can only guess in terms of applications now under the Mental Incompetency Act, and there are about 350 applications a year for committeeship over property. Very few, if any, are contested. Most years there are no contests. The Justin Clark case, where the parents were moving for committeeship of the person, was a very rare occurrence when there was a contested application.
The advocacy component indeed was always part of the advisory committee's approach and the whole of this act is predicated on there being rights advocacy, the streamline procedures, because the whole intent has been to make it real for people with disabilities.
Right now, what happens if you have a mental incompetency application is that a process server comes out to the home of a disabled person, hands him a mass of papers in connection with an application which would terrify any one of us. They do not know what is going on. If you are incapable, you put it on the shelf and you hope it goes away. There is nobody now who comes out and says: "Here is what this is about. Do you object? Do you want some help in fighting it, or do you think it is okay?"
The whole of the advocacy component is an essential component of the Substitute Decisions Act. Indeed, the committee said that without an advocacy component you should not proceed with the rest of its recommendations under this act. It has always been a vital part of the advisory committee's approach to how the act should work.
In numbers, the tremendous volume of cases will be those people who are now in institutions for whom nobody is responsible for making decisions, for whom care givers are making factual decisions, those without family, whose family is not there. Think about the people in institutions who are developmentally handicapped, and that is two thirds of those who may not have any family at all any longer involved and for whom care givers have somehow been making decisions.
We hope that care givers have been making principled decisions, but no legislation governs them, no authority is given them, and we do not know. We really do not know what kinds of decisions are being made and why. It is for the first time to have somebody who is accountable for the decisions that are made.
That part of the component which will take place over the first few years of the act will be a major set of applications, but after that hopefully the number of applications will be pretty small and over time, with a concerted effort by the public guardian and trustee's office to tell people about powers of attorney for personal care, people will in fact make their own choices for their attorneys. Thereafter the numbers may drop off very significantly so that in the next 10 years there will be very few guardianship applications.
The Chair: Thank you, Mr Carr. Any further comments or questions? Seeing none, on behalf of the committee, Mr Fram, I would like to thank you for taking the time out of your busy schedule to appear here today.
The committee adjourned at 1720.