ONTARIO ASSOCIATION OF PROFESSIONAL SOCIAL WORKERS
MEDICAL ADVISORY COMMITTEE, HOSPITAL FOR SICK CHILDREN
YOUTHDALE TREATMENT CENTRES LTD
BAYCREST CENTRE FOR GERIATRIC CARE
ONTARIO ASSOCIATION OF CHILDREN'S AID SOCIETIES
JUSTICE FOR CHILDREN AND YOUTH
CONTENTS
Wednesday 5 August 1992
Advocacy Act, 1992, and companion legislation
Ontario Association of Professional Social Workers
Susan Roher, chairperson, task force on advocacy legislation
Doris Baker, member
Carol Eisenberg, member
Hospital for Sick Children, Medical Advisory Committee
Dr Alan Goldbloom, committee representative
Dr Françoise Baylis, bioethicist
Youthdale Treatment Centres Ltd
Hugh Kelly, solicitor
Dr Jim Deutsch, director, crisis unit
Paul Allen, assistant director, administration
Baycrest Centre for Geriatric Care
Moshe Greengarten, vice-president, public affairs
Ontario Association of Children's Aid Societies
Dianne Cresswell, manager, communications
Sylvio Mainville, managing director, Hamilton-Wentworth Children's Aid Society
Justice for Children and Youth
Cheryl Milne, staff legal counsel
Sheena Scott, staff legal counsel
Brian Weagant, executive director
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Cooper, Mike (Kitchener-Wilmot ND)
*Vice-Chair / Vice-Président: Morrow, Mark (Wentworth East/-Est ND)
*Akande, Zanana L. (St Andrew-St Patrick ND)
*Carter, Jenny (Peterborough ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
*Curling, Alvin (Scarborough North/-Nord L)
Harnick, Charles (Willowdale PC)
Mahoney, Steven W. (Mississauga West/-Ouest L)
*Malkowski, Gary (York East/-Est ND)
Runciman, Robert W. (Leeds-Grenville PC)
*Wessenger, Paul (Simcoe Centre ND)
Winninger, David (London South/-Sud ND)
Substitutions / Membres remplaçants:
*Kwinter, Monte (Wilson Heights L) for Mr Mahoney
*Owens, Stephen (Scarborough Centre ND) for Mr Winninger
*Sterling, Norman W. (Carleton PC) for Mr Harnick
*Sullivan, Barbara (Halton Centre L) for Mr Chiarelli
*Wilson, Jim (Simcoe West/-Ouest PC) for Mr Runciman
*In attendance / présents
Also taking part / Autres participants et participantes:
Fram, Steve, counsel, policy development division, Ministry of the Attorney General
Malkowski, Gary, parliamentary assistant to the Minister of Citizenship
Clerk / Greffière: Freedman, Lisa
Staff / Personnel: Swift, Susan, research officer, Legislative Research Service
The committee met at 1033 in committee room 1.
ADVOCACY ACT, 1992, AND COMPANION LEGISLATION / LOI DE 1992 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Consideration of Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / 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 / 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 / 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, 1992 and the Substitute Decisions Act, 1992 / Loi modifiant certaines lois de l'Ontario par suite de l'adoption de la Loi de 1992 sur le consentement au traitement et de la Loi de 1992 sur la prise de décisions au nom d'autrui.
The Chair (Mr Mike Cooper): I'd like to call this meeting of the standing committee on administration of justice to order. We'll be continuing on the second round of public hearings on the amendments to the advocacy package.
I have a couple of announcements. There has been a package handed out with some of the briefs of people who won't be appearing for all members to read. A reminder that we are on camera in-house only for these meetings: The camera is stationary and won't move at all, just so everybody knows.
ONTARIO ASSOCIATION OF PROFESSIONAL SOCIAL WORKERS
The Chair: I'd like to call forward our first presenters from the Ontario Association of Professional Social Workers. Good morning. Just a reminder that you'll be allowed a half hour for your presentation: The committee members would appreciate it if you keep your comments to about 15 minutes to allow time for questions and comments afterwards. As soon as you're comfortable, could you please identify yourselves for the record and then proceed.
Ms Susan Roher: I will begin as chairperson of the OAPSW task force on these bills. I'm Susan Roher. With me today presenting are Ms Doris Baker and Mrs Carol Eisenberg. I trust you all have a copy of our presentation. We will pretty well read through it as quickly as we can.
Let me begin on page 2, reminding you that our original presentation was on February 17. We're happy to go on to say that our association has demonstrated that the social work profession can make a significant contribution to the drafting and implementation of these important pieces of legislation. Throughout the history of our profession, social workers have advocated for the vulnerable adult, facilitated the voice of the disfranchised and empowered the decision-making of consumers. Central to the practice of professional social work is the involvement of the consumer.
On to the next page: We again would like to mention our support of Bill 74 in its sanction of advocacy on an individual and systemic basis.
In reviewing the amendments, we'd like to recommend the following:
As previously, the question of who decides who is vulnerable has not been addressed in the legislation. We looked for that and couldn't find it.
Moving on to clause 13(1)(b) on advisory committee appointments, we feel there should be specific criteria by which the three other persons appointed by the minister would be selected so as to ensure that those with appropriate training, experience and interest are considered.
I refer now to section 15.2 addressing the relationship of the advocate with family and friends. It reflects our previous recommendation "that advocacy efforts be mediative and non-adversarial wherever feasible in order to promote and strengthen the appropriate care-giving behaviours of the social/family support system and to maintain these systems." While section 15.3 links the advocate with substitute decision-makers, the appropriate linkage and deciding in terms of specific issues should be clarified to prevent conflicting directions.
I refer you now to subsections 30(4) and 30(5). We find these permissive and general, requiring subjective judgements by an advocate in areas where the gradations of harm require detailed interpretation.
Subsection 34.1(3) recognizes that advocacy services are regularly performed by others such as social workers.
Subsection 35(2) should specify disciplinary conditions governing all advocates, especially when dual accountability exists.
Ms Doris Baker: I'm Doris Baker and I have some comments about the Substitute Decisions Act. OAPSW is a provincial organization that continues to be in agreement with the principles of Bill 108 of allowing capable persons to determine future treatment decisions should they become incapable. We further support this proposed legislation that's aimed to protect vulnerable adults from financial exploitation, physical abuse or neglect, but we would ask the committee to consider the following comments in relation to these proposed amendments.
Looking at subsection 10(3), we wonder if the witness is required to raise all the questions as raised in subsection 8(1) separately from the original assessment. If this is so, it would appear to be unnecessary repetition and this section, we suggest, could benefit from some clarification. We would raise similar concerns in relation to subsection 48(3), the criteria under personal consent.
We're pleased to see the issue of non-Ontario guardians is addressed in subsection 17(5) pertaining to property, but it's not apparent with reference to personal care.
Given the multi-assessment requirements of section 46, we recommend that the expertise of professional social workers be acknowledged and utilized as assessors for that section. We continue to support the notion of multiprofessional assessments.
The notion of certificates for substitute decision-makers we think is very significant for expediting services, but we would ask you to have concern that they be produced in some manner that would defy alteration, maybe like a health card or some such thing.
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Mrs Carol Eisenberg: I am Carol Eisenberg, speaking to Bill 109, the Consent to Treatment Act. OAPSW strongly endorses the important principle of individual self-determination, which underpins the Consent to Treatment Act. We also recognize the advantages of consolidating all consent-to-treatment legislation within the one act.
Social workers, as part of their professional ethics, respect the right of individuals to determine their own future within the values and resources available in society. Additionally, it is important to be able to enshrine in legislation a method for having one's decisions respected in the event one is not able to exercise such decisions at the time they are required.
In addition, OAPSW would also recommend the following: As in our previous submission, our major concern remains that the profession of social work is not included in this legislation. This omission is due to the fact that there is no social work legislation in this province.
Furthermore, in support of the need for legislation, we submit that the assessments and interventions of social workers in health care services require the expressed consent of patients. For example, in discharge planning, the consent of the patient, or patient-client, is key to the effectiveness of the plan, especially when the treatment plan includes transfer of the patient to a nursing home or other long-term care facility. Such plans should not be made without the expressed consent of the patients or their representatives.
Ms Baker: We would be happy to respond to any questions.
Mrs Barbara Sullivan (Halton Centre): I want to refer back to the first section of your presentation, relating to Bill 74. I wonder if you could clarify your comments relating to section 15.3 which says while the section "links the advocate with substitute decision-makers, the appropriate linkage and deciding in terms of specific issues should be clarified to prevent conflicting directions." Could you clarify what you mean by that, because it seems to me that one of the themes through the entire Advocacy Act is that the advocates are not to make decisions and provide directions on their own account and that it's either the person involved or the substitute decision-maker who is to do that?
Ms Roher: As we reviewed it, I don't think we were necessarily referring to the advocate being the deciding vote, but rather to the potential confusion that might exist if there's a conflicting viewpoint between the substitute decision-maker for property and the substitute decision-making person for care, in that they're interwoven, as you can appreciate. Where is the final say should a conflict arise?
Mrs Sullivan: You suggest that subsections 30(4) and (5) should be less subjective. Could you expand on that point? This relates to the disclosure of information.
Ms Roher: I'm not sure the extent to which I can illustrate our point, except to point out to you that harm can be interpreted in various ways, and indeed there are gradations of harm, some of which could be subjectively viewed and perhaps overlooked or overemphasized. We are searching for a little more clarity and detail of what is meant by serious harm.
Mrs Sullivan: One of the things that has been interesting to us as we've been going through the hearings is in fact the conflict between what may be considered a medical determination of serious harm or risk, whether it's physical or mental, and the concerns that the advocate may in fact act as almost a busybody and make decisions about risk to the person involved that in fact don't have merit on a medical basis.
I'm wondering if that's a kind of issue that you're looking at in bringing this forward. I think of restraint; by example, if a social worker or another advocate fundamentally opposed restraints, even though in certain cases there are reasons for those restraints, if that's the kind of decision that you are referring to here.
Ms Roher: We hadn't specified it in terms of restraint, but certainly that is a consideration, what does constitute serious harm and what is the extent of risk to the person.
Mrs Sullivan: My last question is a more general one relating to the involvement of social workers in the whole system here. Is it your view that social workers should in fact be part of the group that is allowed to make assessments of whether a person is vulnerable, and on what basis would social workers participate in that system?
Ms Baker: Yes, we believe that social workers have the education, training, experience, practice and wisdom, and we're frequently called upon. It just happens that the three of us who are before you this morning all work in acute care settings, while we have experience in other positions prior to the present appointments we hold. Frequently social workers are called upon to make those decisions and determinations, particularly when we look at section 46, which lists the six different criteria that I'm sure you're more than familiar with at this point.
In terms of home visits and making judgement calls, it's very important to understand any particular cultural background, any particular mannerisms that a person might have, so that the person who is an eccentric is allowed to continue as an eccentric and not be kind of bound by some other type of situation. Obviously, we believe social workers with psychosocial training are significant persons to be involved in those determinations, but again we believe there should be multiprofessional assessments.
Mrs Eisenberg: I would like to add to that, just to say that social workers have been accustomed for generations to operating within a legal framework. For example, it's social workers who implement the Child and Family Services Act through the children's aid societies in Ontario, so they're accustomed to relating social and psychosocial findings and assessments to what the law requires and to operating within a legislative framework. I would just like to add that point as well.
Mr Norman W. Sterling (Carleton): I have a specific question with regard to the Substitute Decisions Act. You noted that the issue of non-Ontario guardians is addressed in relation to property. In other words, if you make a power of attorney with regard to a non-resident, then often you have to post a bond or whatever it is. That's the case in appointing an executor of an estate. Do you think it's appropriate that you have that kind of clause with regard to personal care decisions, or do you think that limitation is necessary?
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Ms Baker: I think it would advance the legislation. Again, under the property one, there's an opportunity there that security doesn't have to be posted if the court makes that decision. Later on, the back part of the legislation -- I've forgotten the number -- describes that if an order is made when a person is domiciled in another part of the world outside of Ontario the consent, that authority, for a guardian can come into Ontario.
Looking at that, and again looking at the map of Ontario and the number of boundaries -- Manitoba, Quebec, Windsor-Detroit situations -- it seems rather unusual that a son might be living in Detroit and have an elderly mother in Windsor and that he could not be the substitute decision-maker for that person and they're in fact 15 minutes apart.
Mr Sterling: For personal care you mean?
Ms Baker: For personal care.
Mr Sterling: My understanding is that he could and that there would be no sanction against him.
Ms Baker: If that's in the legislation, I failed to find it. I hope you're right.
Mr Sterling: No, but by being silent, is it not saying that? Your preference is that if people live in another jurisdiction they have the right to make a personal care decision on behalf of somebody when they have been given that responsibility.
Ms Baker: I think that could be advantageous to the identified vulnerable person.
Mr Sterling: I agree with you, but I believe the legislation says it. Perhaps we can have a clarification from the Ministry of the Attorney General.
The Chair: The parliamentary assistant isn't present at the moment.
Mr Paul Wessenger (Simcoe Centre): Unfortunately counsel from the ministry is not present here either, but the only thing I would offer is my own opinion that there's no restriction on the granting of power of attorney for a person. Of course anyone could be appointed as the power of attorney; that would be clear.
The Chair: We will try to mention that before the day's out.
Mr Sterling: Perhaps, Mr Chairman, you would be good enough to have the Attorney General write to this particular group as well with that answer to inform them. The other part I wanted to ask about briefly was with regard to the disciplinary actions against an advocate, which I have been very much concerned about. You express that you would like to see some change with regard to section 35. What kind of thoughts did you have on that end of it? I'd like your input on that.
Ms Roher: Some brief thoughts: As I recall, in my review I noted that there would be a fine for improper disclosure. I'm wondering about termination, for example, in situations of just cause. Certainly addressing the potential of a fine is important, but is it sufficiently strenuous for this or perhaps other misdemeanours, as it were?
Mr Sterling: You see, one of the problems we have is that we're saying these people are to act for vulnerable people. Therefore, in my view, there has to be some method for people who have the interests of a vulnerable person to complain about an advocate's behaviour towards that vulnerable person when somebody else views that he's not acting in the best interests of the vulnerable person.
Ms Roher: Yes.
Mr Sterling: I find section 35 totally inadequate. All it deals with is the disclosure of information. It does not relate to other behaviour that an advocate might undertake. Is there anything within the framework with which social workers are familiar which controls or deals with discipline within your profession?
Ms Roher: Yes, there is.
Mr Sterling: Where would be find that?
Ms Roher: You might write to our college, the Ontario College of Certified Social Workers. There are rules of conduct etc. There is a discipline committee there as well. There are also very thorough accountability mechanisms established in departments of social work. The supervisory structure is --
Mr Sterling: So you have a disciplinary committee for the association. Are you aware of who sits on that disciplinary committee?
Ms Roher: Yes, and you can refer to that. I'm not sure whether you want to know names.
Mr Sterling: No, not names, but the type of people who are sitting there.
Ms Roher: There are social workers and people who are lay to social work. I was going to say people from outside the profession -- lay to social work. It is quite a well-developed system.
Mr Sterling: Maybe you could write to me and let me know a little bit about that structure. I'd appreciate knowing.
Ms Roher: We'd be very happy to do that.
Ms Baker: Mr Chairman, can I add one thing for Mr Sterling? Regretfully, belonging to the college of social workers, it's a voluntary organization, so I don't want to miss that opportunity.
Mr Jim Wilson (Simcoe West): We will put that in the legislation.
Ms Baker: Thank you for mentioning that.
We had wondered about the dual accountability under that section. We draw to your attention that if an advocate is working for the commission there may be more clear accountability than if there is dual accountability. A person who is working for an agency is appointed as an advocate and could be fined and so on. But one of the suggestions we would probably make would be that if that person had a professional body, the professional body be notified for any additional, but there's no suggestion that an advocate would in fact have a professional body.
Ms Jenny Carter (Peterborough): I'd like to thank you, first of all, for your global support of Bill 74, and I'd like some clarification on some of the points that you raised in respect of the Advocacy Act. First of all, you said that the definition of "vulnerability" is not adequate. I think we'd agree that the nearest point we come to really going into this is where the people who can be appointed to the advisory committee are listed, the groups that would be providing people to do that.
If you feel that is not a satisfactory summary of what the vulnerable groups might be considered to be, could you tell us how you would expand that? It seems to me that we're never going to have a total 100% definition of all the possible vulnerable groups or how they might be vulnerable, but could you suggest how we could clarify that?
Ms Roher: May I pick up on that first? When I made the comment of who decides who is vulnerable, I was referring to an on-the-spot assessment. Mary comes in; she looks a little off. Who makes the determination that indeed she is vulnerable and requires A, B and C? Who has the authority to do that was the point, not the point of who is on the commission.
Ms Carter: No, I realize that you weren't focusing on who was on the commission, but that is the nearest we come to listing the groups that a vulnerable person might be a member of, if you like. They might be elderly, schizophrenic or whatever. Do you feel there's anything needs to be added to that? Because I think the ultimate decision, whoever makes it, is going to be to some extent subjective. I don't think we can ever pin it down absolutely.
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Ms Roher: From what I recall at the moment, I don't have any particular categories to add to that. I guess it's a question of degree of vulnerability and extent of need, which still appear fuzzy to us, and then, on the basis of that, who decides.
Ms Carter: And of course by definition, we are saying that some of these people will have been vulnerable in the past and are no longer so, so obviously there is a boundary that they can cross in both directions over time.
Ms Roher: Yes. The vulnerability definition is certainly a slightly different issue than the issue of competency, and we just wanted to draw that to your attention. It's left wide open.
Ms Carter: People who were theoretically perfectly competent could in fact be exploited in some way, so that they would need to be included in the definition.
Ms Roher: Yes, definitely.
Ms Carter: You also asked about criteria for the three other people who would be selected by the minister. I wondered if you had suggestions for that.
Ms Roher: We didn't come with suggestions, except to reiterate that appropriate training, experience and interest be considered.
Ms Carter: But you don't have any suggestions, more detail, as to what appropriate training?
Ms Roher: No. It's just that we noticed that they were omitted.
Ms Carter: Okay.
Mr Mark Morrow (Wentworth East): First, I understand that it's your second time here, so I want to thank you again for taking the time out to appear before us. I have a question about your last point on Bill 108. Does that refer to section 15?
Ms Baker: The notion of certificates?
Mr Morrow: Yes.
Ms Baker: I think that's spoken to in subsections 17(7) and 49(7), where the guardian is given some type of certificate to carry about, and I could see that as being very expeditious when a person went into an emergency room or there was some business to be transacted. The point we're making is that, I suppose, human nature being as it is, one would hope that this certificate could not be duplicated in some manner or altered in some manner.
Mr Morrow: Is this what you're referring to when you talk about the authenticity?
Ms Baker: Did we use that word? I guess we did. Yes, the authenticity.
Mr Morrow: Okay. Thank you very much.
The Chair: Thank you, Mr Morrow. Ms Roher, Ms Baker and --
Mr Alvin Curling (Scarborough North): Could I just ask one quick question, Mr Chairman? It's important to me and the professional people who are here.
The Chair: Brief. No preamble.
Mr Curling: In regard to Bill 74, the Advocacy Act, section 6 talks about the criteria for appointment. It reads, "A majority of the members of the commission shall be" persons who are or have been vulnerable persons. Who are vulnerable -- I'm dealing with that part of it. Vulnerable people need advocates. How could a person who would be on that board and who is a vulnerable person then make a decision about vulnerable people? Do you have any comment about that? I'll put it this way: Do you understand it the same way I do in subsection 6(1) here?
Ms Roher: I haven't reread subsection 6(1), but certainly I have a great respect for the wisdom of vulnerable people to see things in other vulnerable people.
Mr Curling: The old act, though, said that because of vulnerable people -- we'd have advocates for them.
Ms Roher: Yes.
Mr Curling: And this vulnerable person will be making decisions about vulnerable people. But who would be the advocate for that vulnerable person sitting on that commission?
Ms Roher: I understand what you're saying and I think that's a complication and needs to be sorted out. But certainly I think the active participation of those who have been there is very important.
The Chair: Thank you, Mr Curling. Ms Roher, Ms Baker and Ms Eisenberg --
Mr Sterling: Just before this group leaves, the late Mr Fram has arrived, and I wonder if perhaps he could answer the question for this group with regard to powers of attorney for personal care and whether non-residents of Ontario can exercise those powers.
Mr Steve Fram: Yes. The answer is yes. There's no restriction on someone in Detroit being the attorney for a parent in Windsor.
The Chair: Thank you very much for that clarification. Once again, on behalf of the committee, I'd like to thank you for taking the time out today and giving us your presentation.
Ms Roher: Certainly we thank you. Your questions were very interesting.
MEDICAL ADVISORY COMMITTEE, HOSPITAL FOR SICK CHILDREN
The Chair: I'd like to call forward our next presenters from the Hospital for Sick Children. Just a reminder, you will be allowed half an hour for your presentation. The committee would appreciate it if you would keep your comments to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you're comfortable, could you please identify yourselves for the record and then proceed.
Dr Alan Goldbloom: My name is Alan Goldbloom. I'm here representing the medical advisory committee of the Hospital for Sick Children. I'm accompanied by Dr Françoise Baylis, who is a bioethicist on the staff of the Hospital for Sick Children. We appreciate the opportunity of speaking to you today, and as I mentioned, our brief is on behalf of the medical advisory committee. I hope you will shortly receive a copy of the brief. I think it's being circulated now.
Like our colleagues from the division of adolescent medicine at the hospital, who have already spoken to you, we were very pleased to see the elimination of a specific age of consent to medical treatment in the amendments proposed to Bill 109. Unfortunately, correction of one problem appears to have created several others.
The new bill certainly helps mature, autonomous adolescents who want to give or refuse consent to treatment on their own behalf, and perhaps without parental knowledge. However, the revised bill may have a very negative impact on less mature, non-autonomous adolescents who resist appropriate and necessary treatment which their parents or guardians want them to have. Any members of this committee who are parents will recognize the tremendous variation in the levels of emotional maturity and development in the young adolescent population. Yet the bill states that all children of 12 years or over, if deemed capable with respect to treatment, may refuse treatment regardless of their level of autonomy, their level of social or emotional maturity or their parents' wishes. The only way that parents can ensure that appropriate treatment is given to such a child is to have the child deemed incapable with respect to treatment by the health provider, in which case the rights adviser process comes into play.
We have grave concerns about the potentially destructive effect of this aspect of the bill on routine child health care, on routine hospital practice and on normal family relationships. In presenting some examples to you today, we hope to show two things:
1. Not every refusal of treatment by a young person is a "healthy expression of autonomy," and objection to medical treatment is a common and expected behaviour of young teens.
2. There are many situations where it is important for parents to be advocates for their children as they mature, over and above the objections of their children, without involving a rights adviser.
We recognize that the intent of the bill was not primarily to supplant the normal role of parents. Unfortunately, the effect of the bill as it is now written is such that it will do just that, and furthermore, will seriously complicate the provision of normal child health care in Ontario. Our concerns are illustrated in the following examples:
Example 1: A 12-year-old boy is brought to the emergency department after falling from his bicycle. He's got a broken arm and a deep cut on his face. Furthermore, he is terrified of doctors and hospitals, but is fully lucid and awake. He states that he doesn't want any needles or stitches and refuses to let anyone touch his arm. The doctor explains that the arm needs to be set and that without careful suturing, the facial cuts will leave nasty scars. Neither injury, however, is causing enormous suffering and neither is life threatening. A delay in treatment may produce a less satisfactory result, but will not put him at significant risk.
The parents want appropriate treatment given, but the boy refuses. The physician feels the boy is capable with respect to treatment, even though his decision-making may be immature. The parents think their son would regret his decision in the long term and that he is now refusing treatment as an expression of his anger towards them. It turns out that he's been grounded by his parents a few days earlier and was disobeying them when he went out on his bicycle.
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In this situation, the emergency room physician could not treat the child unless he found him incapable, in which case the following steps would have to take place: The physician would have to notify the child of his entitlement to a rights adviser; the child would then meet the rights adviser and either the child declines to challenge the finding of incapacity or the child challenges the finding, goes before the review board and the finding is upheld. The provisions of section 22 on emergency treatment without consent would not apply, since the injuries are not causing severe suffering and will not put the child at risk of serious bodily harm.
Here we have a situation of a child who is capable but immature. Traditionally, society has expected parents to act on behalf of such children in order to protect their long-term interests. In this case, would society be fulfilling its responsibility to children by allowing them to be permanently and needlessly scarred?
It's one thing to respect the wishes of a competent adult who insists on a foolish choice. However, our society generally accepts that not all children are fully competent, self-determining individuals whose foolish choices must be respected. The concept of capacity with respect to treatment may be appropriate for adults, but seems unworkable in young adolescents. Maturity and autonomy develop gradually in any child. With respect to any treatment, therefore, a child may be capable but immature. During this phase they continue to require the protection of their parents, along with respect for their developing autonomy.
In reality, the above situation is a very frequent occurrence in any emergency room that treats children. Children, including young teenagers, regularly object to treatments that may be painful. In our society, parents, acting as advocates for their children, regularly overrule their children's objections and ensure that appropriate treatment is given.
Example 2: The parents of a 12-year-old girl are desperately concerned because she's failing at school, seems depressed, is running away and staying out overnight and has lost interest in most activities. They fear for her safety and consult their family doctor who refers them to a child psychiatrist. The parents are keen, but the girl says that she won't talk to any psychiatrist. The parents are willing to bring her along whether or not she agrees to talk.
In this case, the family physician recognizes that this girl is somewhat passive and distant, but doesn't feel that she is incapable with respect to treatment. He deems her capable because, in the strictest sense, she understands that there's a problem, she knows what a psychiatrist is and what the purpose of the referral is. She simply doesn't want to participate. Therefore, the child's verbal objection would take priority over the parents' wishes. Referral to the child psychiatrist can't take place.
If the doctor did find the child incapable, or if the family shopped around until they found a physician who would find her incapable, the next step would be to bring in the rights adviser. Quite aside from the delays involved in the process, the effect of bringing in a rights adviser could in itself be quite destructive on the family unit and could significantly affect any subsequent therapeutic process.
This is a typical problem in child psychiatric practice. It's far more common for an adolescent to resist treatment than to agree to it. While you might question the value of a psychiatric consultation in which the identified patient refuses to talk, a child psychiatrist is very frequently required to sit with a sullen, angry and essentially non-verbal adolescent for extended periods of time as a means of ultimately engaging that patient. The adolescent comes to the session because parents expect the adolescent to comply. Furthermore, this is an important time for the adults to be in control and often the absence of control is the root of the problem. Bill 109 would interfere with normal parental authority and the process of bringing in a rights adviser would simply aggravate the original problem.
In this situation, why would the government want to discourage or usurp the legitimate role of parents as advocates for their children? Part of the treatment in such cases is in fact to empower the parents. The new law would disempower them.
In the third example we have a measles outbreak in a junior high school in Toronto, something that's happened recently, and public health officials determine that 100 students aged 12 to 14 years need booster doses of measles vaccine. Fifteen children refuse and indicate further that they don't want their parents to give permission on their behalf. The public health nurse at the school believes that these children are capable with respect to the treatment. Since they are capable, they can't be immunized and they can't return to school until the outbreak is over. They may in fact be excluded from school for up to two months. Further, they may pose health hazards to others in the community.
There are several confounding issues that come up here. First, under clause 10(4)(b), the health practitioner would have to notify the rights adviser of each child who objected to treatment since these occurred in a place other than a prescribed facility or psychiatric facility. Second, parents are legally liable to ensure that their children are at school. If children can't attend because they refused to be immunized, will the parents be liable? Third, who becomes responsible for the increased public health risk caused by the refusal of these supposedly capable, but immature, young teens?
Even when there's no epidemic or outbreak of communicable disease, the bill poses a problem regarding immunization. At present, parents who object to immunization on religious or other grounds sign an affidavit to this effect in order to ensure that their children may attend school. Will children 12 years of age or older now be given similar authority to sign such documents if they wish to refuse immunization? In other words, will Bill 109 interfere with what is commonly accepted as routine well-child care?
In the final example, a 12-year-old girl has been injured seriously in a motor vehicle accident and is brought to the emergency department. She will need surgery in the next few hours and will also need blood transfusions. The parents state that for religious reasons they cannot permit blood transfusions. The child is unconscious and cannot speak for herself. The parents insist that she has been brought up according to the principles of their religion and that the child herself would not want a transfusion, despite the fact that survival without it is extremely unlikely.
Under section 23.1 of Bill 109, the health practitioner can override the parents' wishes and proceed with life-saving treatment in this situation. At first glance this may seem quite appropriate, until you contrast it with current practice. Under current law, the health practitioner would view the patient as a child in need of protection under the Child and Family Services Act and would call the children's aid society. By taking the child into temporary custody in order to permit treatment, our society has taken responsibility for the treatment decision.
Under Bill 109, the decision to treat in this case is potentially at the discretion of the individual physician, seriously disempowering the family members. Ironically, the Child and Family Services Act has recently been revised to be more culturally sensitive. Bill 109 would appear to pre-empt this act, thereby removing a procedural protection for parents whose wishes, interests and beliefs may differ from those of the health practitioner.
As health practitioners who are committed to the health and wellbeing of children, we're deeply concerned that parental responsibility for decision-making regarding their children's health and wellbeing may be inappropriately undermined by Bill 109. We recognize that under existing law there may occasionally be problems where parents make decisions for their autonomous children.
Bill 109 attempts to solve this problem by proposing the opposite extreme, thereby obstructing parental authority to make decisions for their non-autonomous children. Parents will be powerless whether the child is deemed capable or incapable with respect to a treatment. Remember that if the 12-year-old is deemed capable, she may consent to or refuse treatment of her own accord. If she is deemed incapable, she must be notified of her entitlement to a rights adviser. Either way, the parents are excluded and treatment may be delayed.
In addition to the important ethical and societal issues that come into play in all the examples above, we should also note that there are tremendous logistic implications for these procedures. The examples cited are not uncommon ones. Furthermore, there are procedures routinely done in a hospital like ours, such as complex surgery, transplants and treatment of some genetic diseases, which would be difficult for any 12-year-old to fully comprehend.
We already spend enormous amounts of time discussing the implications and risks of such treatments with parents, and even adults often have difficulty understanding the situations well enough to make truly informed decisions. Thus, for some interventions no 12-year-old could ever be considered capable with respect to the treatment. We might be in the situation of needing full-time rights advisers in the hospital for specific interventions.
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What can we suggest? We feel the bill as it now stands is ill-conceived with respect to its effect on health care in children. If your purpose is in fact to empower autonomous children, you've already accomplished this with the elimination of the legislated age of consent. If your purpose is also to protect the less mature non-autonomous children, even if over age 12, then you need to allow parents to speak and act in their children's best interests and to allow the children's aid society to protect children when their parents fail to do so. Our province, under the Child and Family Services Act, already has an excellent system for providing such protection.
Bill 109, by failing to account for the gradual and variable development of emotional and intellectual maturity in young adolescents, will in fact increase the risk for many of these children. It will do so by interfering with family decision-making processes, thereby delaying needed treatment. The process may do irreversible harm to some families, will disrupt even non-controversial medical care and will be a logistical nightmare for practitioners and institutions that routinely care for children. We believe this aspect of the bill in unacceptable and needs major rethinking and revision.
I have added an appendix which I will not read -- it lists a few specifics related to paragraphs in the bill -- but we'd be happy to discuss or answer any questions.
Mrs Sullivan: Everything that comes around goes around, I suppose, because we've been dealing with the age question, I think almost from day one of public hearings on these bills. Providing an authority to children who are capable and mature of certain decisions, and keeping that medical information in a private way and treating the young person as an adult, is frequently in conflict with the best interests of the child in terms of other decisions.
We have already heard from children's aid societies about some of the difficulties associated with these amendments. One of the things I think we're going to want to explore further is whether indeed there should be another section or portion of the bill -- and perhaps counsel will be involved in that -- that would eliminate the provisions of the bill to the requirements of the Child and Family Services Act. That still leaves parents, however, in a different and difficult position. I think as we proceed we want to explore all these issues further.
You've indicated at some point in your brief that there is a serious conflict between the rights adviser intervention in subsection 10(2) of Bill 109 and the ability of the practitioner to treat with a substitute decision under a different section of the bill. How would you see physicians at Sick Kids' or another hospital determining the priority, and if the legislation proceeds as it is, how would they operate?
Dr Goldbloom: I think you've asked a very appropriate question because there's great uncertainty at this point, and you have to see this in the light of the current mood, if you will, in the health professions, which is that people are very fearful of prosecution and very concerned about protecting themselves not just for the immediate decision but also, if they treat a child against that child's wishes and, for example, there is a poor outcome or a child is unhappy five years later, are they going to be sued five years later by a child who says he or she was overruled and didn't have access to the legislated rights in the bill?
I think also this whole issue of determining capability or capacity with respect to treatment is very ambiguous and I'm sure you could get different opinions. When I mentioned that parents might shop around, I think that could happen, but that doesn't help us in the emergency room setting. What we're dealing with in the emergency room are sometimes life-threatening problems where decisions have to be made quickly.
I think the uncertainty has to be resolved. I don't think the intent of the bill was to ever prevent that kind of treatment from taking place -- at least from the discussions I've had. Unfortunately, the effect of it may be just that, and that's what we're left to deal with.
Mrs Sullivan: In conclusion, I just want to comment on your observation that full-time rights advisers will be required in hospitals. Indeed they will be required in every hospital around the clock and there'll have to be more than one of them. I don't think the cost of that calculation is being taken into account in this legislation at all.
Mr Sterling: We've got a bit of a problem here. When we had the previous section 8 in the bill, when people under 16 years of age were presumed to be incapable, the children's aid societies were satisfied with that section. They thought it would take into account the great number of people, and therefore they would be put in a position of authorizing or -- I may be using liberty with this language -- forcing a young, immature adolescent to take necessary treatment.
We've eliminated section 8 altogether because of a lot of objections from various groups, particularly people who would counsel younger people, particularly younger women with regard to birth control advice and that kind of issue. By taking section 8 out, I assume we go back under the common law in terms of what consent is necessary, what consent you have to get from an individual, and that consent is if you deem that the person understands what's happening. Then the second kicker is that if you find they can't understand, then you've got to call in the advocate, if they're found incapable.
Dr Goldbloom: If they're found incapable, but they can still object, if they're over 12, according to the legislation: He may understand, but that 12-year-old can still object, and that objection, at least as I understand it, still takes priority once the child is over 12. That objection means the rights advisory process comes into play, even though the parents may be standing there saying, "Sorry, you're going to have to have this stitched up."
Dr Françoise Baylis: If I can add something, I think part of our concern has to do with the reliance on the term "capacity" and the way it's been defined. It's been defined very narrowly. It requires two things, that you be able to understand the information relevant to the decision and that you be able to appreciate foreseeable consequences. That is a relatively low standard. It is perhaps appropriate that you should have such a low standard for an adult, who is presumably an autonomous person who can make choices and weigh up different kinds of considerations. Our concern is that a lot of children can meet that standard, but perhaps have not developed in terms of their own personal maturity to really know which factors they want to base a decision on.
If you think about our example with the measles, if the children understand the relevant information and they understand the consequences, one of the consequences is that they will be out of school for two months. They could base their whole decision on that consequence, choosing to ignore other consequences. We would allow an autonomous adult to make such a choice based on sort of a strange possible consequence. The child, however, doesn't maybe have the maturity, the lifespan and the longer term to think about that, and that's what we're concerned about.
Mr Sterling: This is an empowerment process. That's the problem with it. What we're saying is that we want to deal with adults differently than we want to deal with children or adolescents. Quite frankly, I'm empathetic to that thought. I guess my problem is, how do we address it in Bill 109? It's nice to talk about it, but we've got a real problem here.
Dr Goldbloom: Well, you do. I think two things. One is that we agree with the empowerment of adolescents. We agree with the fact that adolescents ought to be able to seek out health services, as has been allowed now by the elimination of section 8. We also agree that autonomous, mature adolescents ought to be able to participate in some of the decision-making, and this is a routine for us now, particularly with some of the major treatment decisions that occur in adolescence.
But there is this gradation, and when you say, "How do you deal with it?" maybe we should look at the model that has existed for the last number of years, which is that in terms of protecting vulnerable children, if you will, we expect that parents will do a certain job, and when they fail to do that, we have the Child and Family Services Act, which looks after the child in need of protection. That's the model we've used for children.
Would you be able to accomplish what you're after in adults by modelling something after that? In other words, what you're really trying to do, as I understand it, is to protect the vulnerable adult, the adult in need in protection. The children are already protected. Maybe what there needs to be is an adults' aid society along the lines of a children's aid society, that kind of model, because that's the model that has in fact worked well in jurisdictions all across North American to protect the rights of children when their parents fail to do so. That would maybe be another approach to look at.
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Mr Sterling: I guess it's nice to say that, but I don't think this government is going to back down with regard to Bill 109 at this stage of the game. What I'm trying to find out from you is, what parts of the equation should we tinker with in order to make your life easier and to make us get a better conclusion for young adolescent people in our society? With capacity? Should we deal with that issue?
Dr Goldbloom: As we said in our appendix, the number one thing is section 10, which calls for automatic, indiscriminate involvement of a rights adviser for those 12 and older who are found incapable with respect to treatment. That's where the problem lies. This automatic substitution of a rights adviser for parents in all cases is really the crux of the issue. I think a way has to be found around that, whether it's through the definition of "autonomy" or the addition of the word "autonomy" somehow and some way of defining that or whether it's through the definition of "capacity." But the effect of the legislation, as it is now proposed, is such that it's a terrible problem. Françoise, I don't know if you want to add anything to that in terms of suggestions.
Dr Baylis: One of the things I'd like to remind the committee of is that we certainly argued against the legislated age of consent of 16. We know a number of other people did. Really, one of the things we were objecting to with that was the arbitrariness of any kind of firm demarcation line. Our concern is that you heard us but that you only heard part of the argument, which was to get rid of 16. You didn't understand the part about arbitrariness.
What has happened is that we just have another line that's arbitrary, and what we want to do is to be able to be sensitive to those individuals as individuals and deal with them individually. Some of them need rights advisers; some of them don't. Some of them need to be listened to and respected immediately; some of them don't. We feel the legislation is perhaps faulty in its arbitrariness.
Mr Stephen Owens (Scarborough Centre): In terms of your concerns around the determination of capacity, I share a tug on that issue with respect to how you determine whether a person is 12 or 16 in the sort of 15-minute interview that occurs, whether it's in the emergency room or up on the floor. What recommendations would you make with respect to that determination for kids?
Dr Goldbloom: I haven't come with a specific recommendation about how you can determine capacity. I think it's a very difficult issue. Whatever happens is going to have to apply to every health practitioner in private offices, in institutions, emergency rooms, wherever. I'm not sure how you're going to be able to decide that other than through defining it in terms of words such as "maturity," "type of treatment" and so forth, which means it will ultimately still be up to the judgement of the individual, and that individual may feel unprotected in making such judgements.
It's easier for us, frankly, in institutions, where we have policies and guidelines and a lot of colleagues we can call in to help us make decisions, than it is for the practitioner working in isolation and having to do that. He may feel quite uncertain.
Mr Owens: What do you do now with, say, a 14-year-old leukaemia patient whose disease process has pretty well run its course?
Dr Goldbloom: It's interesting you should raise that because that's one of the examples we had discussed. I can present it to you. With a 14-year-old child with leukaemia who's had, say, three relapses of her disease and multiple attempts at chemotherapy, and it's unlikely that anything else is going to do much good, we would certainly involve that child in the decision-making process and the discussions. Our oncologists routinely do that.
Mr Owens: Who would ultimately make the decision with respect to her treatment?
Dr Goldbloom: We hope that becomes a consensual decision by the parents, the child and the health care providers, and there are a lot of multidisciplinary people who are often called in as part of that process. Those are the kinds of very difficult choices that nevertheless are made on a daily basis at a place like ours, and we fully believe that children ought to be empowered to participate in that.
Dr Baylis: I just want to add one comment. Perhaps the most important thing is that in the hospital we work towards consensual decision-making. That's what so much time is spent doing. What we find really difficult is that the minute you bring in a rights adviser, you are introducing the possibility of an adversarial system and you are in fact condoning an adversarial system where we're going to set up teams and who's going to win. That really is not how we deal with health care and decision-making. We try to get everybody involved.
Where does this rights adviser come in? They come in to say, "Oh, by the way, you have these rights." That's not how we want to have a discussion. We want to try to get know these children, understand how much can these children understand and involve them to the extent that they are able. We don't tie down children and try to force treatment on them. Likewise, we don't ignore them. It's that happy medium we work towards. I'm sure you've heard many other people describe this process as potentially adversarial.
The Chair: One brief comment, Mr Kwinter.
Mr Monte Kwinter (Wilson Heights): I just want one quick question. It seems to me there are also some economic considerations, that a child may make a decision that may not be life threatening but may impose a severe economic hardship on his family because of the nature of the particular affliction, and for that family not to have a chance to override it or to have some input would seem to me to create some problems. Do you have any thoughts on that?
Dr Goldbloom: Certainly, any such decision can have some long-term effects, whether economic or otherwise. I think you just really are restating that same point we're making, which is that it has to be consensual. There has to be involvement of the parents, and 12-year-olds, for the most part, do rely on their parents to help them in those kinds of decisions. But I agree there could be some long-term problems.
The Chair: Mr Goldbloom, Miss Baylis, on behalf of this committee, I'd like to thank you for taking the time out this morning and giving us your presentation.
YOUTHDALE TREATMENT CENTRES LTD
The Chair: I'd like to call forward our next presenter from the Youthdale Treatment Centres. Good morning. Just as a reminder, you'll be allowed a half-hour for your presentation. The committee would appreciate it if you'd keep your comments to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you're comfortable, could you please identify yourself for the record and then proceed.
Mr Hugh Kelly: I'm Hugh Kelly, solicitor for Youthdale Treatment Centres Ltd, which is presenting to you today. Dr Jim Deutsch is the director of the crisis unit operated by Youthdale. Mr Paul Allen is the assistant director in charge of administration of the unit.
Mr Chairman, members of the committee, it is our intention not to read this whole brief but to highlight it for you. I will start, Dr Deutsch will discuss some of the clinical implications of the population we serve and, following that, Mr Allen will give you a bit of a view on some of the administrative issues that are involved.
Youthdale is an Ontario corporation operated on a non-profit basis. It has been in existence for 23 years, having been started in 1969. It is probably the most experienced provider of children's mental health services in the province of Ontario, and perhaps the oldest. It is certainly the largest in Ontario.
Youthdale employs a dedicated and professional staff of psychiatrists, psychologists, physicians and social workers, as well as child care workers, each a specialist in child-oriented problems. Our focus today is on Youthdale's modern eight-bed facility, located in downtown Toronto, which provides emergency secure treatment for children resident from Kingston in the east, Orillia in the north, London in the west. It is the only emergency secure treatment facility operating in Ontario.
Dr Deutsch will describe in a few moments the population that we serve, but I think it's important for you to understand that this facility is invariably at capacity, necessitating all-too-lengthy waiting lists for children in need. This is so, despite the fact that for every application for admission that is granted, five are declined because of the extremely restrictive admission requirements.
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I should also point out that in recognition of the success and contribution of its programs, Youthdale has received the prestigious American Psychiatric Association's Hospital and Community Psychiatry Gold Achievement Award. Youthdale staff continue to develop newer and more innovative programs to assist troubled youth and their parents and they are acknowledged as leaders in this growing and clinically demanding field.
Children are admitted to this unit under the Child and Family Services Act under the provisions dealing with emergency secure treatment. We have appended to the brief, starting after page 14, extracts from those provisions, and I'll make some reference to them in a moment.
Children admitted to the program are under the age of 16 years and generally, though not always, over the age of 11 years. They have a substantial disorder of emotional processes, thought or cognition, which grossly impairs their capacity to make reasoned judgements. They have caused, attempted or threatened serious bodily harm, even death, to themselves and/or to others, in circumstances that those responsible for them believe could come to pass unless extraordinary measures and intervention are imposed. They are literally children out of control who require stabilization so that they may be able to continue their progress to adulthood that society can accommodate and in which they themselves can live in reasonably comfortable relationships.
Youthdale's provision of emergency secure treatment is governed by part VI of the act which, as I've indicated, is attached. Under this legislation, Youthdale has been approved by the Ministry of Community and Social Services to operate the secure treatment program, providing effective and appropriate treatment to allow for the admission of mentally disordered children who, as a result of these disorders, have caused or attempted to cause, or by words or conduct have made substantial threat to cause, serious bodily harm to themselves or others. You should be aware that children under 12 are admitted to Youthdale only with ministerial consent.
Youthdale is literally the facility of last resort. Admissions are only made after completion of a very thorough clinical assessment and only if no less restrictive method of providing appropriate treatment exists. Youthdale is a secure treatment facility; that is, a locked setting offering round-the-clock psychiatric and other medical and nursing services. Treatment, both individual and group, is geared to resolving as rapidly as possible crisis situations for a child and/or his care givers, preventing further harm, with a view to the identification of the underlying problems and making recommendations for the development of long-term care planning. Precautions are taken by Youthdale to prevent children from harming themselves or others but -- you should again be aware -- with an emphasis upon the active involvement of the child with support in making reasoned choices.
Although the Child and Family Services Act allows for emergency secure treatment for up to 30 days, the average length of stay at Youthdale over the past 10 years during which this service has been provided has been consistently about 14 days.
The emergency secure treatment process at Youthdale is not unregulated. The Child and Family Services Act requires that a child be advised of his or her right to a hearing for a full legal review of the propriety of his or her admission and to have immediate access to the office of child and family service advocacy and to the official guardian to assist in such review.
Whenever a review is requested, the review hearing, conducted by a three-member review board appointed under the Child and Family Services Act, must be completed and a decision must be rendered within five days of the child's application for review. There is no provision for an extension of that deadline. The Child and Family Services Act directs that the child be released from Youthdale if, in the opinion of the review board, the criteria for admission have not been met.
It should be noted that nothing in this extensive review process prevents the administration of necessary treatment to a child while the review board hearing into the propriety of admission is being conducted within this five-day period.
There are obviously two questions that come to mind: Will the requirements of consent or the proof of incapacity to consent pursuant to the Consent to Treatment Act affect the ability to render emergency secure treatment? Second, do the safeguards afforded by the Child and Family Services Act obviate the need of further consent to treatment safeguards?
Youthdale believes the answer to both of these questions is yes. If you review the sections of the Child and Family Services Act dealing with the emergency secure treatment admission and the review process, you will see that there is a high degree of safeguard of the rights of children. I think, putting it very simplistically, the process is due process. The child has every opportunity to challenge the validity of the admission process. You should be aware that of the perhaps 100 to 125 applications that have been made under the Child and Family Services Act for a review of admissions in the past two years, approximately 95% of those have been upheld by the review board after, I can tell you from personal experience, rather exhaustive hearings, some of them lasting up to 12 to 14 hours.
There has been a suggestion put forward that some of the problems related to the addition of the Consent to Treatment Act review process could be solved by cross- appointments; that is, appointees to both the review board under the Child and Family Services Act and the review board under the Consent to Treatment Act be the same persons. That suggestion is, with great respect, too simplistic. It fails to recognize the profound implications of permitting the children to continue to present a risk to themselves and others by reason of the delays that are built into the proposed Consent to Treatment Act.
I draw to your attention that unlike the Child and Family Services Act where a review process must be completed and a decision rendered within five days of the application, there is no such time limit contained in the Consent to Treatment Act. A child out of control is entitled to be protected from the very risks inherent in the delay; similarly, because they are in a group setting, other children are entitled to be protected from the harmful influence of the child who would merely be held in detention without treatment.
We conclude by making some specific suggestions starting on page 11 of our presentation. Perhaps I'd just draw your attention to page 11. There are four alternatives: an exemption of emergency secure treatment facilities from the operation of the Consent to Treatment Act; an enforced 10-day delay in the exercise of the right to seek a review of the finding of incompetence to consent or refuse to consent to treatment where there has been a refusal of an application for release from emergency secure treatment under the Child and Family Services Act; a reinstatement of the presumption of incapacity in the now removed section 8; an expansion of the discretions granted to health practitioners under section 22 of the Consent to Treatment Act to provide increased protection to children admitted to emergency secure treatment such as offered by Youthdale.
The common thread of these is that there is already in place under the Child and Family Services Act an adequate review process that is perhaps on a much shorter -- if I may put it this way -- leash than that proposed under the Consent to Treatment Act. Again, I emphasize that under the Child and Family Services Act that review process must be concluded and the decision made within five days.
I also draw to your attention that the maximum stay under emergency secure treatment under the Child and Family Services Act is 30 days. It doesn't take much mathematics to realize what could happen with even routine delays if there was provision for two hearings. It is for this reason that the suggestion is made for a delay factor, where there has already been an application under the Child and Family Services Act for a review. What can be foreseen is that a child would run to the end of the 30-day maximum period while the review process is being undertaken. It frustrates the whole point of the emergency secure treatment.
I would now like to turn over the discussion to Dr Deutsch.
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Dr Jim Deutsch: It would be impossible to discuss in a brief period of time all the joys and sorrows and hopes and disappointments that are involved in treating this very complicated but very deserving group of kids. I think the problem in the legislation in a nutshell is that it isolates for scrutiny only one aspect of the whole picture.
Children and adolescents need to be listened to very carefully, and that's how we begin with them as soon as they come in our door. We have to work fast and understand them and their situation as quickly and as completely as we can. We do need their cooperation in this process.
Children and parents often have mixed feelings, however, when help and support are offered to them. That's only natural. However, the children and families we serve on an emergency basis are at the end of the spectrum. They're not the average. They're highly disturbed, highly damaged and often highly damaging. It's often quite scary to hear their stories and to work with them when they arrive at our door, but their behaviour can be seen as a reflection of their inner turmoil, as well as a challenge to the adults to take control. Kids sometimes put this into words: "I want you to take control. I want someone to take control. It's too chaotic. It's too crazy."
The legislation, I believe, can undermine the authority or hierarchy, as we use in technical jargon, which is a developmental necessity for the child. We see time and again that children do so much better shortly after they arrive on our unit, and I think part of this is an immediate response to the fact that it's safe. The door is locked, so they can't run, but also the abuser or the threatening or harsh adult cannot just walk into the bedroom. They are also responding to the fact that they know who's in charge and also that there's a very clear expectation of mutual respect. There are rules. Things are made clear; they are not so confusing.
Treatment, I think, is inseparable from residence on the unit, and the process envisioned by the legislation I think would pose us with a dilemma. First, if a child is refusing the treatment, this can be disruptive to the group or the community function which is such an important part of how we work. We work primarily through talking and listening, individually and in groups. We have a school. We have activities. If a child is sitting it out in a separate part of the program or is obviously not taking part, it can be very disruptive in almost a contagious manner to the other kinds.
The second aspect of the dilemma is that we wouldn't be able to offer the service to a child, and this very child would often have a tremendous need for such a service, for reasons of safety, emotional wellbeing and, most important, the opportunity for a positive change in his predicament.
I've been director for four years now. In our experience, some children whose stay with us is terminated early and abruptly for legal reasons under the Child and Family Services Act end up not being followed as closely or cared for as well and as comprehensively after they leave the unit. Hence, they are very much in more danger as a result.
Mr Paul Allen: I would only add a few comments. With respect to bill 109, as I understand it, while there is a requirement that the health practitioner advise children 12 years of age and older of their right to a rights adviser and a hearing to review any determination of incapacity, at Youthdale, under the Child and Family Services Act, we as the health practitioners have been required upon the admission of a child to our program to advise him of his rights to a review of his admission.
In putting into practice the Consent to Treatment Act, we would extend, in our practice at least, a sense of obligation to inform all children, even those under the age of 12, of their rights to meet with an adviser and to have a review of any finding on our part of their incapacity to refuse consent to treatment. It would be impossible for us to do otherwise, given that these children under 12 live for at least a short period of time with children up to the age of 16.
Perhaps I could speak to the relatively few number of children who are admitted to our program who go ahead with a review of their admission to the program, and suggest to you the difference we would find working with that population if we also had to contend with the Consent to Treatment Act.
For the children who do apply for a review of their secured treatment admission, we at least have a number of days to engage that child in the treatment process at Youthdale. We can approach that child with some expectation on behalf of his or her parents or legal guardians that he or she give our program a try, notwithstanding doubts he or she might have about our trustworthiness or the effectiveness of the work we might offer.
What we have found in a significant number of those cases is that we are able to establish a treatment alliance with those children, that there is some level of satisfaction that the child himself or herself experiences even in the first few days of our intervention. I'm very concerned, upon the admission of a child who refuses consent for that treatment, that we are put on hold for the entire duration of the stay of that child. In effect, from the day the child walks in the door, we are faced with a refusal for consent from that child for treatment with a view to a further review of the child's admission. There is no opportunity within the two weeks we set aside on an average for the child's stay in our care for that child and family to receive any real assistance from our program.
As Mr Kelly has eloquently put it, it would effectively reduce what really is a premier treatment resource to a detention centre for children who are very dangerous and who are very seriously mentally disordered.
Mrs Sullivan: I want to suggest that there might be two alternatives in solving the problem you face and some of the problems that, by example, the Hospital for Sick Children faced in terms of child treatment. One of them is that the Child and Family Services Act would have statutory precedence over Bill 109. Would that solve your problem?
Mr Kelly: In fact probably not, because at the present time, as the legislation now reads, there would be an entitlement to both. If I were acting for a child, it would be a very simple answer. I would bring an application under child and family services review first, because the thought would be I might be successful in getting my client sprung. The lawyers who act for children -- I mean this in no critical way -- are inclined to think of it as springing their clients. If I lose that, then I can always bring an application for review under the Consent to Treatment Act and therefore effectively defer treatment until the statutory limit of my stay is up.
This is why we suggest, as we do in the last section of our brief, if I can draw your attention to 5.2 on page 12, that there should not be a prohibition of using the Consent to Treatment Act but a delay, in the event that there has been an application under the Child and Family Services Act, for a 10-day period. This is not uncommon, for example, under the mental health legislation, where you can't bring successive applications for review one following the other. There has to be a time span because the sense is there will be no significant change in circumstances. If that concept were implemented in the Consent to Treatment Act, then that would go a substantial way to avoid the problem we anticipate.
Mrs Sullivan: Mr Curling has a question.
Mr Curling: I'm trying to understand all this. It seems to me Youthdale is a sanctioned legal body under the Child and Family Services Act. If all this new legislation would empower you to act on their behalf, would that solve the problem? As you said, you then become the full advocate because all the children in your care have either mental or medical problems and need special care. You now become the advocate for these individuals. If this legislation happens, would you then take over that role?
Mr Kelly: I don't see that that's feasible. The legislation contemplates that it would be somebody independent of the treatment facility. That only makes good sense.
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Dr Deutsch: This is ongoing now. We have an advocate who sees the child, usually the same day, within hours, in the child advocacy office, so that's already in place.
Mr Sterling: Because these adolescents and children are the severest end of the spectrum, am I correct in assuming that the treatment is in some cases quite severe or dramatic as well? I'm having difficulty understanding. I think the Consent to Treatment Act is an empowerment act and therefore gives the individual the right to make choices. What kind of treatments are we talking about here?
Dr Deutsch: That's a very interesting question that you raise. Actually, the healthier kids may exhibit the more disturbing behaviour. The kids who have stayed in their room for the past three months and have had almost no contact, other than accepting the food that's handed to them by a parent who is frightened and doesn't know how to handle the situation and is afraid to seek help, are the children we're most concerned about in terms of the treatment.
The treatment basically in child and adolescent psychiatry is primarily based on talk and group interaction. We do use medication. There are behavioural techniques that are used, but over the years I think the bad reputation that these techniques have earned has become less and less justified because we are now all multidisciplinary in terms of our teamwork and multimodal. We use very many different kinds of techniques. We do use medications. We don't use electroshock therapy. We don't do psychosurgery and we don't have punishments in terms of behavioural modification.
Mr Sterling: Good.
Mr Allen: Maybe I could answer your question and add to Dr Deutsch's answer. We have many people coming from the United States and from elsewhere in Ontario and Canada to visit our program. If there is a common observation that comes through as they observe the children in the group milieu on our unit, it is the surprise they have that the children with these problems are functioning that well and look so apparently happy with their treatment on the unit.
Mr Sterling: As you portray the consent to treatment, it basically is going to impede timely treatment to these people who need it the most. Can I ask the parliamentary assistant for the Minister of Health about the concern? Is the Consent to Treatment Act, for this particular class of citizen that we have in Ontario, intended to be an added protection for them, and do you deem it necessary in terms of the other protections which these individuals have in this kind of a setting?
Mr Wessenger: I'd say it's basically a codification of the common law with some modifications. Basically that's what they've done in this act. It's a codification of the common law with some minor modifications, particularly with the question of the age of 12 and rights advice. Other than that, as I said, it's still a common law test with the amendment that's put forward taking away the basis of the age aspect.
Mr Sterling: Again to the parliamentary assistant, the witnesses point out that there's a serious impediment to the treatment of these individuals introduced by Bill 109 which can act to the detriment of these individuals. I take their word for it. What is your objection to excluding this kind of institution, or people under the care of this institution, from the application of Bill 109?
Mr Wessenger: I'm here today to listen to their concerns. I have some questions myself for the group, which might be interesting.
The Chair: Thank you, Mr Sterling. Mr Wilson.
Mr Sterling: Just a minute, Mr Chairman, with respect. We're going to go into clause-by-clause hearing of this in the very near future, and I think the clearer we can become as to what your positioning is on individual issues, the less lengthy that process is going to be.
We're gaining some urgency or some alarm with regard to Bill 109 and how it's dealing with treatment of children in particular, or adolescents, and I would like the parliamentary assistant to come back to the committee and express the policy or the reasoning behind wanting to include these people, if there is a reason, because I want to know in terms of my fight with regard to including or excluding this kind of agency. I would really like to know what the reasoning is, if there is sane reasoning.
Mr Wessenger: The reason obviously is to ensure that the common law principle of consent exists through all institutions, whether they be psychiatric institutions or otherwise. Then I said if there are some particular problems here, we'll have to take a look at them and see if there are any practical problems that need to be solved.
Mr Jim Wilson: Just briefly, I wonder if the witnesses can tell us, have you brought these concerns with respect to what appear to be inconsistencies between the Child and Family Services Act and the Consent to Treatment Act previously to the government and, if so, what was the response? Did you get any assurances by Mr Fram or the parliamentary assistant or anyone that these things would be dealt with? Otherwise, we'd like to know on this side what hurdles we have to help you over in the next little while.
Mr Kelly: There was a meeting involving similar kinds of facilities to Youthdale and staff within the Ministry of Health and the Ministry of Community and Social Services but, with no disrespect intended, I don't think our message got through that it is not so much that we are trying to avoid meeting an obligation of due process to these children as how much due process is going to interfere with the ability to provide any service at all.
Mr Jim Wilson: That's very helpful. I do have a quick question also with regard to the 10-day breathing period, as it were, between the two review processes. Can you give me a picture of what would occur during that 10 days? My assumption right now is that if the first review process under the Child and Family Services Act said it was an appropriate admission, you would then be able to treat during those 10 days until such time as the individual had access to the consent-to-treatment review process. On whose authority then? On the guardian's or all the other provisions that are provided, and in which act? It's a little confusing for me how you would act during that 10-day breathing period.
Dr Deutsch: I think initially we would be carrying out our treatment program, and then it might come to a grinding halt. It's hard for me to picture it as yet, because it hasn't happened on our unit. But as I said before, I think if a child suddenly pulls out and sits on the sidelines and it turns into essentially a detention centre for that one child, it could be quite disruptive to the others, who are always looking for some way to parlay the peer interaction into something more significant and distracting.
Mr Wessenger: The first question I'd like to ask the counsel for Youthdale is, are you of the opinion that under the present legislation you can treat a capable child under 16 without that child's consent?
Mr Kelly: I think by very definition the child cannot be capable and be admitted. If you look at the definition under the Child and Family Services Act, which is the criterion that they suffer from a mental disorder that affects their ability to reason -- I won't go into the definition unless you wish me to.
Mr Wessenger: No, that's fine.
Mr Kelly: -- they are by definition not capable.
Mr Wessenger: My second question is that you're under the Child and Family Services Act. On the other hand, adults in psychiatric services are under the Mental Health Act. Is there a difference between the two acts with respect to the powers, for instance, what your facility can do?
Second, would it be preferable if your institution was under the Mental Health Act? It would appear to me primarily, right now, that if you were under the Mental Health Act, the young people you deal with could be admitted to your institution under that act. I am wondering if there are differences.
Mr Kelly: Until April 1989, if I am correct, Youthdale was a psychiatric facility under the Mental Health Act. At that time, by regulation, it was delisted as a psychiatric facility and brought under the Child and Family Services Act. To the best of my recollection, I don't think in the eight years before that conversion was made there was a single application under the Mental Health Act. Since that act has come into force and since Youthdale has been under the Child and Family Services Act -- again if my memory serves me correctly -- there have been between 120 and 130 applications for review.
Mr Wessenger: So what you're saying is there's less opportunity for review under the Mental Health Act than under the Child and Family Services Act.
Mr Kelly: I don't think there's less opportunity; I think there is less incentive. Our experience has been that there has been less incentive.
Mr Wessenger: Would it solve your problems to a large extent if your facility was under the Mental Health Act?
Mr Kelly: I'm not certain I'm capable of answering that in an absolute way. I suspect that the same problems could well affect mental health facilities, in so far as youth are concerned, as we've described under the Child and Family Services Act. Our concern is that because we are a very narrowly time-limited facility -- on average, 14-day stays -- the whole 14 days, even if it's expanded to the statutory maximum of 30 days, will be used up in legal process, not in helping these kids.
Mr Wessenger: I think that's really the question. If you're under the Mental Health Act, you'd have a longer period of stays. Is that correct?
Mr Kelly: I don't think the operation of this unit would change substantially, but perhaps I could ask Dr Deutsch and Mr Allen to comment.
Dr Deutsch: We've certainly considered the implication of the switch to the CFSA and what it would be like to switch back, and it's really hard to say. It's an experiment, in a sense, that hasn't been done yet. I think we've continued to operate as a crisis service for children and families, and it's been a rough road at times to maintain that service with the change in legislation. But basically, I would think that a place like Whitby Psychiatric Hospital, which has an adolescent unit, is going to have problems with this as well. I assume that they would be making a presentation around their situation.
The Chair: Mr Kelly, Dr Deutsch and Mr Allen, on behalf of this committee I'd like to thank you for taking time out and giving us your presentation today.
This committee now stands recessed until 2 pm this afternoon.
The committee recessed at 1214.
AFTERNOON SITTING
The committee resumed at 1405.
BAYCREST CENTRE FOR GERIATRIC CARE
The Chair: I call this committee back to order. I'd like to call forward our first presenter from the Baycrest Centre for Geriatric Care. Good afternoon. I remind you that you'll be allowed a half-hour for your presentation. The committee would appreciate it if you'd keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you're comfortable, could you please identify yourself for the record and then proceed.
Mr Moshe Greengarten: My name is Moshe Greengarten. I am vice-president of public affairs for Baycrest Centre for Geriatric Care. I believe you have copies of our submission in front of you, so I'll just highlight and not go through it in detail.
While we remain concerned about certain aspects of the amended bills, we are prepared to support their enactment, although we have made certain recommendations which we hope you will take into consideration.
As we noted in our original brief, we want to emphasize again that this submission is confined to dealing with the elderly and that the concerns we have raised may have little or no bearing with respect to other vulnerable groups.
I want to begin by stating our support for the amendments concerning research in the bills and to commend the government on the appointment of Professor David Weisstub to head an inquiry on non-therapeutic medical procedures on behalf of mentally incapable individuals.
We also wish to endorse the amendments to Bill 109 regarding emergency treatment. In particular we support the amendments to subsection 22(1), which redefine the nature of treatment that may be administered by a health practitioner without consent; subsection 22(3.1), which permits an examination without consent to determine the need for treatment; section 23.1, which permits treatment under certain circumstances in which consent is refused, and the substitution of the term "rights adviser" for "advocate." At the same time, we recommend that Bill 74 be amended to specify the definition, qualifications and responsibilities of rights advisers.
We also support the proposed amendments concerning the assessment of capacity and we have some recommendations that we would ask the government to take into consideration following passage of the legislation regarding training and education for professionals, care givers and the community at large.
With respect to advocacy, we also wish to state our support for many of the proposed amendments. These include clause 1(b)(ii), which identifies the specific circumstances under which advocacy services are to be provided; clause 7(1)(k.2), establishing a written review procedure for dealing with complaints; subsection 7(5), which specifies the various groups for whom public information and education programs will be conducted; section 10, establishing an advisory committee; sections 15.1, 15.2 and 15.3, setting out the responsibilities of the advocate, and we particularly welcome references to family and friends in these sections, and subsections 30(3), (5.1) and (5.2) regarding disclosure of information.
At the same time, we remain concerned about several issues which we would like to bring to your attention.
We're concerned about the amended definition of "vulnerable person" in the Advocacy Act which has been expanded to include a perceived mental or physical disability. We believe it is inappropriate to base advocacy services on perceptions of vulnerability.
We continue to be concerned about the apparently universal nature of the advocacy program and we remain convinced that advocacy services should be targeted to vulnerable individuals who are at risk and who do not have supportive family and friends. We therefore recommend that Bill 74 be amended to require the Advocacy Commission to establish guidelines for the appropriate involvement of the advocate.
We remain concerned about the advocate's rights of entry to care facilities. We feel these remain excessive in the amended legislation. We therefore recommend that the bill be amended to provide rights of entry to health care facilities under the same conditions which are applied to entry to other premises.
With respect to access to records, we are similarly concerned that the advocate's rights of access without the vulnerable person's consent are excessive. Specifically, we believe it is improper to be left to the judgement of the advocate whether the vulnerable person is incapable of giving or refusing consent. We therefore recommend that Bill 74 be amended to give the advocate rights of access to records without consent only if the vulnerable person has been assessed by an assessor as incapable of giving consent.
As already noted, we support the establishment of an advisory committee. At the same time, we believe the mandate of this committee should be set out in legislation and we have some specific recommendations.
Finally, we remain concerned that the membership of the Advocacy Commission, as set out in the amended act, does not allow for representation of certain vulnerable older adults, particularly individuals with Alzheimer's disease, and we therefore recommend that Bill 74 be amended to ensure that groups of vulnerable persons who cannot represent themselves, including individuals with Alzheimer's disease, be represented by family members of such vulnerable persons.
The Chair: Thank you very much. Questions and comments.
Mr Kwinter: On that last point you just mentioned, we discussed earlier this morning the possibility of having advocates sitting on these boards. Would you have any comments? When you talk about people, particularly with Alzheimer's disease, being represented by family members of such vulnerable persons, what would your reaction be to an advocate of that vulnerable person sitting on that board?
Mr Greengarten: That depends on whether you mean an advocate as designated under the legislation or an advocate in the generally accepted definition of the term outside of the legislation. If you mean the specifically designated advocate as defined in the legislation, I think we would take issue with that, because I think that would represent a conflict of interest with respect to the purpose of the Advocacy Commission. If you mean by that the informal advocate, who might be a family member or friend or supportive person, we would certainly support that very strongly in the case of individuals or groups of individuals who cannot represent themselves.
Mrs Sullivan: I'd like to pursue some of the issues and will be doing so with other groups and organizations, with respect to assessors and who should be an assessor and how they should be qualified. I note that you have once again reiterated your emphasis in that area. The Ontario Association of Professional Social Workers this morning told us that as part of their work now they are in fact making assessments on a regular basis in terms of competence. I wonder if you'd expand on what you feel should be specifically included in the bill with respect to assessors.
Mr Greengarten: I don't feel I can personally respond to the specific request that you're making. We did recommend initially, and continue to recommend, that there needs to be some investigation of the appropriate qualifications of assessors. We were pleased to see the term "physician" removed as an amendment, the automatic assumption that a physician is a qualified assessor. We do believe that many different types of individuals could be assessors, given proper training, and we believe there needs to be study and investigation of that and perhaps some testing of the appropriate qualifications. Beyond that, I would not feel competent to respond to your question.
Mrs Sullivan: Are you predicting or expecting that as a result of the implementation of Bill 109, rights advisers will become a part of the staff or operating facility at Baycrest?
Mr Greengarten: We honestly don't know exactly what will happen. We are familiar with the model being used in the psychiatric hospitals. We don't know whether such individuals will be available in all institutions or would be our staff or somehow independent of institutions.
Quite honestly, this was something we had suggested in our initial brief, that some of these details be worked out in advance, but we understand there is a desire to move forward on the part of the government with this legislation. We are sensitive to that and we're prepared to work together to try to ensure that an appropriate and helpful system is set up. One of the reasons we did recommend that the advisory committee have specific powers in the legislation was to address these types of issues and to give advice to the Advocacy Commission on these types of matters.
Mr Jim Wilson: Thanks very much for your presentation. I read between the lines here that perhaps you're being very kind to the government in that your recommendations aren't all that tough. Am I right to draw the conclusion that really it's inevitable that this legislation is coming in and you're trying to be as helpful as possible in terms of suggesting some amendments to Bill 74? Are all the amendments you've suggested here rated in order of any type of priority?
Mr Greengarten: No, they are not.
Mr Jim Wilson: They are not. I was wondering in terms of the definition of vulnerable persons and the word "perceived" if that was a basis for any lengthy discussion with your colleagues. It's the first I've heard it discussed here, that's why.
Mr Greengarten: It is an amendment to the original definition. I guess I would like to say that we have not been able to exhaustively discuss the potential implications of this, but we have some concern initially that the service is to be based on a perception of vulnerability. We understand that this can be problematic. How does the advocate know the person is vulnerable? How is that established? We have some concern that a person may be perceived as vulnerable and may not be vulnerable, so we have some trouble with that definition.
Mr Jim Wilson: It certainly welcomes differences of opinion.
Mr Greengarten: It does.
Mr Jim Wilson: If you had a wish list, though, is there anything problematic, particularly with the Advocacy Act, that you'd like to point out to the committee?
Mr Greengarten: I would say our recommendation 7, because we do remain concerned about what feels like a shotgun approach, although the amendments do provide greater definition, and our recommendation 8, because we continue to be concerned that the act would allow for case-finding or fishing expeditions, and we're concerned about that.
Mr Jim Wilson: Baycrest Centre is a prestigious, well-known, highly respected institution. Would it be fair to say that centres such as your own haven't been really told by the government what exactly this model is and how you'll be affected?
Mr Greengarten: To the best of my knowledge, we have not been told. We've certainly read the background documentation and the earlier reports. We have had an opportunity to discuss with ministry staff some of the possible implications, and we have had discussions with our colleagues and ministry staff to try to get more information about what some of the models might be.
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Mr Jim Wilson: Do you feel confident that you and your colleagues at the centre have a good idea of what this model will look like?
Mr Greengarten: No, I can't say that.
The Chair: Mr Sterling.
Mr Sterling: Thank you very much, Mr Chairman, for recognizing me.
I'm intrigued by your comment with regard to the definition of "vulnerable person" where it defines a vulnerable person as one who perceives that he is vulnerable. At least that's the way I read that definition. I would like to ask counsel or the parliamentary assistant who they intend to include within that part of it. I'm concerned that the real people get served with regard to this legislation and not those who perceive that they should.
The Chair: Which parliamentary assistant?
Mr Sterling: The parliamentary assistant for the Minister of Citizenship.
Mr Gary Malkowski (York East): Right now, our legal counsel is on holiday. I would like to respond to that at a later date when our legal counsel has returned.
Mr Sterling: Okay, that's acceptable.
Could I ask another question of Mr Malkowski which relates more to policy? That is the request that groups like Friends or the Alzheimer society be represented on the commission, as obviously a person who is suffering from that disease is unable to represent himself. What is your reaction to that kind of request?
Mr Malkowski: In regard to the nominations committee, I believe that the organizations are able to nominate those whom they wish to represent them on the commission.
Mr Sterling: We're not talking about the advisory committee; we're talking about the commission.
Mr Malkowski: Yes, that's what I'm saying too.
Mr Sterling: That's the only question I had.
Mr Morrow: First of all, let me say I'd like to thank you for your strong endorsement of the amendments to Bill 109. I have a couple of quick questions. This will help me to define something. I'll read you a line here: "However, we believe that the position of rights adviser must be specifically defined." Can you go into a bit of detail on that, if you wouldn't mind, please?
Mr Greengarten: As you probably know, the term "rights adviser" has been substituted for the term "advocate" in Bill 109, but there's no definition. I believe the definition -- I'm sorry I don't have it in front of me -- refers to Bill 74, the Advocacy Act, but there's no definition in the Advocacy Act of "rights adviser" or what the responsibilities are.
We have some understanding, as the question earlier raised, of the position of rights adviser in psychiatric hospitals. We are comfortable with that role, but we're not clear whether that is the intent in Bill 109 or if there is some other intent in the use of the words "rights adviser." It seems to have been dropped in, perhaps without the background changes in Bill 74. That's really the purpose of the point.
Mr Morrow: Under your recommendation 4, where you talk about the monitoring of the impact of Bill 108 and Bill 109, who would actually do that monitoring?
Mr Greengarten: We have some interest in that because we have a competency clinic which is unique in Ontario and perhaps in Canada. We believe that we have some expertise there but we also believe that there are other capable individuals. Perhaps in concert with vulnerable persons and others, there might be some type of monitoring of the impact.
The Chair: Mr Malkowski?
Mr Malkowski: No, that's all right. I've taken care of it.
Mr Owens: In terms of your comments with respect to the limitation of access to the premises, how do you see that promoting a less adversarial relationship with the advocate? If a client in your residence has a concern about treatment or services that he or she is being provided, would it not be in the best interests of the client and the centre to allow advocates reasonably free access?
I'm concerned when you start tightening down on people's access to the institutions in which they are there to advocate on behalf of your clients. It's problematic in that you can only come in here within this prescribed period and you can only go in certain areas within the prescribed time and that in fact the institution may -- and I'm not suggesting Baycrest would ever be involved in something like this -- seek to obstruct, whether consciously or unconsciously, the role of the advocate.
Mr Greengarten: I think the way the legislation is, or at least we read the legislation -- we may be misinterpreting it -- it seems to be based on an assumption that vulnerable persons -- and we're speaking of the elderly in our own submission; we aren't speaking of other groups -- elderly persons in institutions require advocacy services that are different from elderly persons living in other premises or in the community. We question that apparent assumption, that apparent bias which appears to be built into the conditions. It's not that we're seeking to limit the access. We believe there should be access when there are reasonable grounds. We are talking about a situation where an individual has not asked for advocacy services.
As I read the context of this section, we're talking about a situation where there is no evidence that a person requires advocacy services, yet the advocate may have access to the facility, I suppose to try to find out if something is going on even though there's no objective evidence that there is something going on.
I guess just to finish, we treat our residents' premises in the institution as their homes, no different than their homes in the community, and so we have some concern about that.
Mr Owens: You use the words "case finding." My sense is that these individuals would probably be far too busy to need to seek out work. I'm sure the opposite in fact may be true, that they'll be looking to offload some of their case load. My understanding of groups like Concerned Friends is that there has to be a process that kicks in in order to have the group come into the premises, and in reading the legislation I'm not quite understanding why this particular section causes the kind of concern you've expressed.
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Ms Carter: I really want to follow up on the same point. We have amended the access provisions which are in section 18, and I'm just wondering what you would take exception to under that section. In other words, what opening is there for somebody to go on a fishing expedition, as has been suggested? I don't see that from the wording of the act as it is now.
Mr Greengarten: We may be misreading it. If that's the case, we want to be sure we don't misinterpret it, but we didn't read the provisions in section 18, which I believe set out the responsibilities of the advocate, as necessarily applying for the right of entry when there is no evidence of the need for advocacy services.
Ms Carter: The specification given is "(a) a vulnerable person in the premises wants the services of an advocate," which I should have thought was fairly straightforward.
Mr Greengarten: I'm not sure if that refers to health care facilities or to private premises.
Ms Carter: This says "entitled to enter premises other than premises that the advocate is entitled to enter under section 17."
Mr Greengarten: It's a little complicated.
Ms Carter: Yes.
Mr Greengarten: As I said, if we misinterpreted, then we would withdraw the point. We haven't got legal advice on this or anything. We're just doing the best we can to interpret what we've read.
Ms Carter: Yes, and of course, if the vulnerable person has been reached by an advocate and then says he or she isn't interested, that person would leave immediately.
Mr Greengarten: That's correct, but our experience and our concern with respect to our clients is that 80% of our clients in residential services are cognitively impaired. If someone is asked, "Do you wish advocacy services?" it is not uncommon for the person to possibly say yes when he or she may not mean yes or may not understand the implications of the question.
I'm not saying we've had a legion of experiences, but we've had experiences of a well-meaning friend misinterpreting something that has been said and getting into arguments with family members and with staff and creating situations that, at the end of the day, don't benefit anyone but do perhaps create a lot of disturbance for the individual. This is what we're concerned about.
Ms Carter: I guess something like that might happen occasionally, but then you have to set that against the people who otherwise would not have been located who maybe do have a genuine problem.
Mr Greengarten: We would certainly support the view that older people who do not have family and friends to support them should have access to advocacy services.
The Chair: Thank you, Mrs Carter. Mr Greengarten, on behalf of the committee, I would like to thank you for taking the time out this afternoon and giving us your presentation.
Mr Greengarten: Thank you for the opportunity.
ONTARIO ASSOCIATION OF CHILDREN'S AID SOCIETIES
The Chair: I would like to call forward our next presenters from the Ontario Association of Children's Aid Societies. Good afternoon. Just as a reminder, you'll be allowed half an hour for your presentation. We would appreciate it if you would keep your comments to about 15 minutes to allow time for questions and comments. As soon as you're comfortable, could you please identify yourself for the record and then proceed.
Ms Dianne Cresswell: Good afternoon, ladies and gentlemen. I would like to introduce myself and my colleague. My name is Dianne Cresswell. I am with the Ontario Association of Children's Aid Societies. My colleague Sylvio Mainville is the managing director of the Hamilton-Wentworth Children's Aid Society. Mr Mainville can speak to the impact of the proposed legislation on the 400 children in the care of the Hamilton CAS and those children in the community who are served by the CAS.
You have before you our submission, and I will highlight parts of our submission.
Mr Chairman and committee members, we appreciate the invitation to appear before this committee to speak to the Consent to Treatment Act of 1992 and other related legislation.
We wish to advise the committee that the OACAS was aware of the Consent to Treatment Act early in its development. Although we had some concerns with reference to our responsibilities for children between 16 and 18, we understood the government's legitimate concerns about clarifying consent to treatment issues and felt we could live with the legislation, provided the age of consent remained at 16 and that the legislation was sensitive to the Child and Family Services Act and regulations.
We were further aware that the Ministry of Community and Social Services was working with those who were drafting legislation with regard to this concern.
On June 2, 1992, the Ministry of Community and Social Services invited us to a consultation on the legislation and we became aware of the recent amendments and in particular the removal of section 8 setting an age of 16 for capacity to consent.
It is the position of the Ontario Association of Children's Aid Societies that Bill 109 in its present form significantly undermines the principles and the intent of the Child and Family Services Act and is pervasive in its impact on the CFSA legislation.
Bill 109 fundamentally handicaps the children's aid societies of the province in their collective ability to fulfil their responsibilities under this government's own child protection legislation. The impact has been well documented by the previous submission of the Children's Aid Society of Metropolitan Toronto.
In developing this submission, the OACAS considered a recommendation that the Child and Family Services Act override Bill 109. We recognize the difficulties in this proposal and instead recommend the option of the consent to treatment legislation. Before proposing further amendments, I wish to speak to our concerns.
Although the primary focus of our submission will be responsibilities of children's aid societies under the CFSA, we feel the need to point out that the Consent to Treatment Act makes radical changes to provincial legislation and policy with reference to all families and in particular the responsibilities of all parents in Ontario. The impact of this legislation, ladies and gentlemen, could potentially impact on your and my family and our abilities to make decisions on behalf of our children if in fact our children refuse or object to a treatment we deem necessary or appropriate for their health.
Seven years ago Ontario proclaimed the Child and Family Services Act, which was the result of a thorough and careful consideration of the need to balance the rights of children, their parents and the state. The CFSA also recognizes that a balance of rights among the parties is insufficient and articulates an overarching goal, promoting the best interests, protection and wellbeing of children. In our assessment, Bill 109 does not strike a similar balance, nor does it recognize the best interests principle.
We believe the new legislation is likely to increase the number of contentious cases with regard to consent to treatment issues. It is likely to promote family conflict even among well-functioning families which presently find a way to resolve their differences. The treatment process will be further complicated by placing health care providers between parents and children, allowing children under 16 to negate their parents' authority with regard to the decisions they feel are in their best interests.
Although the new responsibilities which are being proposed for children under 16 have some apparent benefit, namely, easier access to treatment and information services for health issues which children feel unable to discuss with their parents and the fact that children would have more control over decisions which affect their lives, there are serious drawbacks.
There is a likelihood of increasing family conflict by undermining the authority of the parents, increasing the anxiety and stress levels of children by placing responsibilities on their shoulders that they are sometimes unable to accept and increasing the responsibility of children for key decisions without accountability for their actions.
The CFSA is a fundamental and important piece of legislation that is notable because it integrates the numerous pieces of legislation which were previously not in harmony in terms of intent, principles or specific language and regulations.
We strongly request that the committee consider the 1990 report of the Advisory Committee on Children's Services entitled Children First. The recommendations include:
The entitlements of children must be incorporated in all existing and new legislation and also in policies that directly or indirectly affect the lives of the children.
All relevant legislation should be amended to reconfirm that the best interests of the child constitute the predominant test to which the child is entitled at every stage of contact with the courts or mandatory services.
All legislation affecting children and their families should be critically evaluated in order to establish legislative consistency with regard to age, access to judicial review, legal counsel, therapeutic assessment and entitlement to participate in reviews.
The new bill compromises the CFSA as opposed to working in harmony with it.
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We again refer you to the submission of the Children's Aid Society of Metropolitan Toronto and would like to remind you of the goal of the CFSA legislation, to promote the best interests, protection and wellbeing of children within the context of supporting the autonomy and integrity of the family, selecting the least disruptive course of action to help the children or family and providing service in a manner that respects children's needs for continuity of care and for stable family relationships while taking into account physical and mental developmental differences of children.
CASs have a statutory duty to investigate allegations that children are in need of protection, to prevent the circumstances leading to child maltreatment, to provide for the needs of children in care and the supervision of children at risk in the community. Courts presently have an ability to order that service be provided to an adolescent 16 years of age or over, even if the adolescent does not give consent. CASs have the ability to temporarily receive transfer of custody of a child from the parents in the form of a temporary care or special needs agreement, which authorizes the CAS to consent to medical treatment where the parents' consent would otherwise be required. A parent's refusal to provide necessary medical treatment for their child is grounds for a child to be considered in need of protection of the state.
CASs have responsibilities to ensure access to treatment and assessment services, including psychological and psychiatric evaluations, in addition to protecting the child. CASs are required to maintain a basic standard of medical care in the required plan of care for each of the children. Health practitioners provide ancillary consultant services and assist in the formulation of the required plans of care, but are not responsible for the plans themselves.
All these statutory duties either cannot be carried out or are significantly compromised by the proposed legislation. I think a few examples might assist, and I would ask Mr Mainville to make some comments.
Mr Sylvio Mainville: The first example concerns a 13-year-old girl, alleged to be sexually abused, who refused a medical examination. This refusal was not because of her incapacity but rather because of fear of consequences to herself and her family. Despite the violent nature of the relationship, abused children are often very dependent and loyal to their family. Refusing such an examination is crucial in the determination of whether the young person is infected with a sexually transmitted disease and to confirm the abuse.
Another case recently involved in a CAS had a dramatic example of a 14-year-old whose unborn child died in utero. The young person refused to have the baby aborted because of her fear of hospitals and medical procedures, despite her clear understanding that she was endangering her own life. In this situation, with the proposed legislation, children could make short-term avoidance decisions which have long-term, drastic and possibly fatal results.
The last example concerns a young girl, aged 15, who has a history of sexual and physical abuse as well as constant running away from home and is totally out of control of her parents. She was at the point of being admitted into the care of the children's aid society, had a severe depression, for which medication was prescribed, and the young person refused the medication, as well as psychotherapy, against the advice of the plan of care and treatment prescribed by the society in consultation with other health professionals. Clearly this was not in the best interests of this young person.
Ms Cresswell: Children's aid societies in the province provide services to approximately 79,000 families with children in the community and care for approximately 20,000 children each year. Hundreds of these children have special needs and are developmentally handicapped, medically fragile or have behavioural problems. Over 15% of our children in care population are placed in resources that provide specialized services and treatment to children.
Children who are admitted to the care of a children's aid society have experienced the trauma of separation from parents and other siblings. Those who have been physically, sexually or emotionally abused are often withdrawn, highly anxious and intimidated by adults. Severe depression is often masked by acting out or contrary or oppositional behaviour.
It is not at all uncommon to find a child or adolescent initially objecting both to the admission to care itself and the separation from parents. Some children and youth object to participating in assessments, counselling services or treatment programs. Indeed it is the very authority of the parent or the substitute parent -- the children's aid society -- which enables the case plan to be implemented.
Allowing a child to refuse treatment can result in a child harming himself or herself, a child being exposed to further abuse or exploitation, a child perceiving the adult world around him as unprotective, an inability to improve family functioning such that a child can return home, a child resorting to criminal behaviour and a child suffering unnecessarily from a treatable illness that may lead to significant physical damage or subsequent death.
Children who have been in the care of children's aid societies and who have experienced such enormous emotional turmoil are often able to understand intellectually what is explained to them by adults and can exercise in a superficial way an ability to make decisions which may appear to be voluntary. These same children report years later how unable they were to absorb and retain information about what was happening to them and how little they understood about the implications of their situation and decisions that were being made at the time.
Children in care talk to their social workers very clearly about their need to know and understand, to know what is happening to them and to be involved in decisions about their lives. They also repeatedly talk about their need to be protected, for structure and for the adults around them to act responsibly on their behalf.
The Consent to Treatment Act proposes a mechanism for ensuring that children who cannot make capable decisions are able to access treatment that requires a capacity test to be applied by health practitioners. We have some concerns:
Many health care practitioners have neither the training or the knowledge of child development required to make such judgements. Many encounters with health care practitioners are very brief and not conducive to developing the knowledge of the individual child before them. The problem-solving process of relationships among children, families and service providers will be substituted by a legislative and bureaucratic process which cannot be sensitive enough to the complexities of the situation. There is a strong likelihood of increasing rather than decreasing parent-child conflict in families. Parents are not involved in the review board process. The definition of capacity is limited and is more akin, in our view, to competency. Competency does not consider the other factors that affect capacity, which includes a child's history and the nature of his or her present situation.
We recognize the genuine concerns of those drafting this legislation with regard to adolescents who may presently be denied access to treatment. Unfortunately, the proposed legislation inadvertently erects another barrier to treatment through a child's right of refusal in the context of a particular condition and/or life situation which compromises his decision-making capacity.
The Ontario Association of Children's Aid Societies recommends that the legislation be amended in the following way: that the age of 16 as the age of consent be reinstated with a rebuttal provision; that the mandate of the Consent and Capacity Review Board include provision for the review of a health practitioner's finding that a child is capable, and that the Consent and Capacity Review Board give party status to parents or guardians with lawful custody. This would include children's aid societies.
The OACAS recognizes the complexity of the consent to treatment issues and the genuine attempts to address the legitimate concerns about consistency and the access of children, especially adolescents, to certain types of treatment. We strongly object to the failure of this legislation to respect the principles and intent of the Child and Family Services Act and the legitimate and necessary role of parents in the first instance with respect to supporting the medical needs of their children.
The legislation is in conflict with the responsibilities of children's aid societies to protect children, and the children's aid societies' specific duties as custodial parents under the CFSA. In attempting to solve a legitimate problem, Bill 109 unwittingly creates a very real opportunity for seriously harming children, especially those who are already victimized and are extraordinarily vulnerable.
We thank you for the opportunity to speak with you today and we would welcome any questions.
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Mrs Sullivan: I wonder if we could clarify one area. First of all, the capacity of the children's aid societies to ensure that treatment occurs without the consent of the child is provided through regulation, or is it provided in the act?
Ms Cresswell: Would you repeat that? I'm sorry.
Mrs Sullivan: Is the power of the children's aid society to require treatment of a child included in the regulations to the CFSA or in the act itself?
Ms Cresswell: It is in the regulations.
Mrs Sullivan: It's in the regulations? Okay. I wanted to clarify that because it's caused some concern in our discussions.
Ms Cresswell: It is in the regulation for the child who is in the care of the children's aid society, but I would like to point out that in the appendix we have included the section "A Child in Need of Protection." If a child requires medical treatment -- clause 37(e) of the act -- and the parent refuses, then in fact the child could be deemed a child in need of protection, and then it would be the agency's responsibility to provide that treatment.
Mrs Sullivan: We have discussed earlier today many of the issues that you've raised in relationship to the age factor. I'm sure that will be a matter for continuing discussion, but I wanted to speak to the issue that you've raised about the standing of parents at the Consent and Capacity Review Board. I believe that it was certainly included in your brief, and in much of the correspondence I've been receiving from children's aid societies, that there's some concern about that.
The bill says that the capacity review board could include as a party to the application any other person whom the board specifies. Do you not think that if the children's aid society had custody of the child or if the parent were there, the board would insist the parent be named as a party to the application?
Ms Cresswell: We would hope that would be so, but the recommendations stand to ensure that.
The Chair: Mr Kwinter?
Mr Kwinter: No.
The Chair: Mr Sterling? Mr Wilson.
Mr Jim Wilson: No, I pass.
Mr Morrow: I have a bit of a lengthy question. When you apprehend a 15-year-old young woman who is a suspected victim of sexual abuse by her father, and you take her to the emergency department of a hospital for examination and she says she does not want to be touched by anyone, do you believe you have the authority to compel her to be examined against her will? Do doctors take authority from you and coerce her to be examined?
Ms Cresswell: In the situation of a 15-year-old, certainly the agency would attempt to persuade, to discuss with that child, that individual, the need for intervention, for assessment. We feel that this kind of legislation would provide some barriers to even that because the child would be allowed to have that right to refusal in a much quicker way.
One of the things we do in terms of intervening with any family is to begin to connect with that family to establish a relationship to assist the child and to assist the family. We feel that this bill, as it sits at this moment with the refusal section, could impair that.
Mr Mainville: It's a good question. Obviously, it makes a lot more sense to proceed with the consent of the child. It's not as much of an issue, although it is an issue with the child welfare system. Keep in mind that our primary responsibility is the protection of the child. We've already removed the child from that situation if we feel strongly that the child has been sexually abused.
Where your question becomes more important is that if we're going to be able to proceed through the criminal justice system to prosecute the alleged abuser, then obviously you can get into a situation where you've got to have hard evidence. The test, of course, in the criminal system is different than in the child welfare system.
Mr Morrow: Given the first part of my question, under what authority would you be doing that, and can you give us the part of the act that actually allows you to do that?
Mr Mainville: Under section 37, if a child is in need of protection, the society has the authority to proceed with the apprehension of the child. Of course, that is subject to the society being accountable to the courts within five days. The society can remove the child, but within five days the society would have to appear before a judge in a court of law and give the reasons why the society acted to remove the child from that situation. Then the court, of course, would make the final decision.
Mr Morrow: That doesn't give you the power to force treatment, though, does it?
Mr Mainville: We have the power within the five days, subject to the court confirming that the child is in need of protection and can remain in the care and custody of the children's aid society. If we have care and custody, then effectively we become guardians of the child and we can consent to treatment on behalf of the child.
Mr Morrow: Thank you.
Mr Wessenger: I would just like to follow up on the statement on page 9 of your brief where you say, "Courts presently have the ability to order that service be provided to an adolescent 16 years of age" -- you must mean "or younger" -- "even if the adolescent does not give consent." I have some difficulty following what that is based on, in view of the fact that I understand the regulation which you referred to states expressly that the children's aid society has the same standing as a parent would have with respect to giving consent.
Following that up, it's very clear that a capable child's consent to treatment is required under the common law. On those bases, I have great difficulty understanding your statement on page 9. I wonder if you have any court authority for that or anything you can elaborate to us.
Ms Cresswell: The court can order an assessment of a child if the matter is brought before the court. I don't have the reference to the act with me, but I certainly could provide that to you.
Mr Wessenger: I'd agree with you that you can assess a child, but I would suggest to you that assessing a child is somewhat different than giving medical treatment or doing a medical examination against the wishes of a child. In fact, I would suggest to you that if a capable child refused treatment under the current situation and treatment were administered or an examination were administered, there would be a situation of assault.
Mr Owens: Following up on the questions of my colleagues, in terms of playing the devil's advocate, if you have a kid who is coming out of a coercive situation in the home and more than likely is the victim of sexual and physical abuse, why is it problematic, that you wouldn't want to start the building of the rights at the point where that child comes into your care and start building a strong foundation, rather than putting him or her into another coercive environment, which is the CAS saying for better or for worse, "We think you need this treatment, we think this is good for you and we particularly don't feel that you have the capacity to decide for yourself"?
Ms Cresswell: In any situation in terms of treatment of a child, we would encourage the consent of the individual child. There is no question that we would encourage that and encourage the child to engage in that consent and engage in understanding that treatment. But in some of these situations, these children have so many other situational things that are impacting on their lives at that point that they are unable immediately to understand the need for that. If there is an opportunity to refuse immediately, it also gives us little opportunity to engage with the child and begin to build that relationship that is so important to help them move towards consenting and participating in treatment.
Mr Owens: Dr Peggy Robertson from the Toronto children's aid society testified at the last set of hearings prior to the adjournment of the House and I've met with her since that. We have some areas of agreement and there are areas we have some variance on. In terms of determining capacity in your role as care givers, what kinds of recommendations would you see? Do you see that as being an ongoing process rather than situational? Do you see where things may change from time to time? What type of advice would you give us on that?
Ms Cresswell: In terms of determining capacity in any situation, we would want to see children participate in the consent to treatment, to participate in the consent to assessment and then to treatment. That would be our prime goal in working with any child or any family. We would have to assess the situation on a case-by-case basis and then determine capacity based on an individual case basis. But in the main, we encourage consent to any intervention that the children's aid society proceeds in, if at all possible.
Mr Sterling: I am sure that from time to time government members get offended with opposition questions and that kind of thing. I've got to tell you that I'm offended with the government members' questions with regard to the role of the CAS, because I think you have one of the hardest jobs of any agency on behalf of the state in our province. In general, you perform your function admirably and I congratulate you for it.
The problem we have with this legislation is reflected by the questions which you have been asked by the government members today. It's adversarial. In other words, it's saying, "We mistrust the people who provide the services in this province," and that's why we have had great difficulty, particularly with the Advocacy Act, because it is going to encourage people whom you are trying to help to avoid the treatment they need in a timely way.
The Chair: Ms Cresswell, Mr Mainville, on behalf of this committee, I would like to thank you for taking the time out this afternoon to give us your presentation.
Ms Cresswell: Thank you.
The Chair: Our next presenters aren't here so we'll recess for 20 minutes.
The committee recessed at 1503.
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JUSTICE FOR CHILDREN AND YOUTH
The Chair: I would like to call this committee back to order and call forward our next presenters, Justice for Children and Youth. Good afternoon. Just as a reminder, you will be allowed a half-hour for your presentation. The committee would appreciate it if you'd keep your comments to about 15 or 20 minutes to allow some time for questions and comments from each of the caucuses. As soon as you're comfortable, could you please identify yourself for the record and then proceed.
Mr Brian Weagant: My name is Brian Weagant and I'm the executive director of Justice for Children and Youth. I am accompanied by Sheena Scott and Cheryl Milne, both lawyers on staff. We appeared in front of this committee originally on this legislation and, in a nutshell, we support the amendments.
The way we think we can help you this afternoon is by responding to specific concerns you think we can help you with from our experience and, second, to respond to some of the positions that have been put to this committee, notably those of the Children's Aid Society of Metropolitan Toronto, the Hospital for Sick Children and Youthdale.
Perhaps I could begin by responding to certain things you heard today. I was sitting in and listening to the presentations of the groups this morning, and I think there are some things with which issue must be taken.
Both Youthdale and Sick Kids tried to paint the picture of legislation that's going to shut them down. There must be some blend of reality, practice and common sense in what's going to happen when this legislation comes in.
If I can begin first with Youthdale, the way they described the treatment being offered there, it has two components. It has a locked door, which means the young person is contained, and, second, they offer very intense personal therapy by way of group, by way of front-line engaging on a personal level with their kids, and the way they described it, a lot of it was verbal stuff. What no member of the committee asked these people was how any legislation in any way promotes or hinders that type of treatment going on.
They give the example of someone who is at home for three months, locked in his room; the only human contact he was getting was food through the door. Do you think if you have legislation that says, "We don't need your consent to talk to us," that's suddenly going to change that young person's condition and then he's suddenly going to willingly engage in all kinds of group therapy that he wasn't before?
The legislation doesn't help or hinder. The consent of the child to participate is on a minute-by-minute basis and is probably controlled as much by how the treatment staff try to engage that young person in the available therapy as it does with anything else. There's nothing about telling the kid, "Your parents have consented to your being here; therefore, you have to talk to us," if it's going to change in any way that child's mental condition about whether he's going to want to talk to front-line staff or not.
The real message Youthdale was giving you, I think, was almost an in terrorem position. They're saying the second they meet any resistance, they're going to shut down. They're going to stop offering. They're going to bring this bureaucracy into play.
Isn't the reality with most of the types of kids they're talking about that you have to cajole them and you have to try to engage them in the treatment you want to offer? Isn't that what parents do with their kids? Isn't that the time-honoured way of getting kids to take needles when they're afraid of the pain? It's a cooperative effort within families and indeed within treatment programs. This legislation isn't going to affect that one iota.
The second thing Youthdale put to you which someone has to take issue with was the statement by its counsel that if you meet the admission for criteria, you automatically lack capacity. That must be questioned. A depressed teenager who's made some threats towards suicide can be very capable to make the decision about whether or not to talk to a therapist once put on the unit. The two things may have no connection at all. Indeed, the type of therapy they described to you that they're offering was something that would require a very low level of competence within which to cooperate.
If what they're really doing is trying to engage people on a personal level, you don't need a high degree of capacity in order to decide whether you're going to enter into a conversation with someone. The bold statement "If you've been admitted to our program, you lack capacity for any kind of decision-making" has to be questioned.
The Hospital for Sick Children: There were several things with which I think you have to take issue; first of all, the examples. Practically speaking, what happens now when a parent shows up at a hospital -- the kid's being brought in by the parents -- and the kid is resisting because he's afraid of the pain? I do believe this comes up on a moment-by-moment basis in hospitals. Hospitals don't tie kids down and treat them; that just doesn't go on. There must be some other mechanism for the treatment to be brought to that child.
I think it's quite clear that there is a cooperative effort between the service provider and the parent to allay the kid's fears, to engage him in what's going on, and in many cases parents prevail upon their children just by weight of the authority they exercise over them. Practitioners have been treating children who are afraid of doctors for years, dentists have been doing it for years, and they don't tie children into chairs. The law has nothing to do with how they treat them. The fact of the matter is, if kids are young, there's a decision made within the family unit and the parents representing the children in some way prevail over the children to cooperate with treatment.
If the program shuts down, it's because the doctors are deciding "We won't treat the second we meet any kind of obstinance in children." It's an unacceptable position for the profession to be taking. They've never done it before, why would they do it now?
The example given this morning was of the girl failing at school who is brought into the hospital by her parents and she does not want to talk to the psychiatrist when she gets there. Does anyone really believe that if the hospital informs her that her parents have consented and therefore it's the law, she's now going to willingly engage in a relationship she might not have half an hour before? That's not the reality of how therapeutic relationships are formed. This legislation is irrelevant to what will happen once that girl is presented to the Hospital for Sick Kids.
The way the problem of the blood transfusion and the religious 13-year-old was framed for you was interesting. They said, "Right now what would happen is if we said the child needed the blood transfusion on an emergency basis and the parents refused on the child's behalf, then we would designate the child in need of protection and we'd have the children's aid over trying to apprehend the kid." Generally, there's a hearing within 24 hours in front of a judge to determine whether the child is in need of protection.
The way they put it to you was that this was a way of upholding the family's participation in these types of decisions. What's really happening there is the hospital has set the ball rolling down the hill to take all authority away from the parents. But they presented it to you that the way it's working now is of great benefit to parents because of the due process built into the mechanism that takes authority away from them.
Interestingly enough, there is case law in Toronto on that. There was a 13-year-old girl whose parents were refusing the treatment, and the court upheld the young woman's wishes not to be treated with a blood transfusion in that case. I believe the cite for that case is in the brief we've put in front of you.
I guess the message I'm trying to give you is that when they say the programs are going to necessarily be shut down because it's now codified that competent teenagers, who always had the right to refuse treatment, can refuse treatment, I think you should really question that. That's not what happens in reality now, and I don't know why anything should change once this legislation comes in.
One of my colleagues is going to respond to the CAS position.
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Ms Cheryl Milne: What I'd like to do is just explain what you have in front of you in terms of the paper we've provided. Brian sort of jumped into things right away. There are two documents we've given you. One is a supplementary brief to the brief we presented originally to the committee. We're not going to dwell upon that; there are just some general comments and then a reiteration of some of our other recommendations which weren't followed in the amendments.
The other brief is a response to the Children's Aid Society of Metropolitan Toronto brief, which we've had an opportunity to review. We have some specific comments based on their interpretation of the law and how it affects kids in care. I'd just like to go through that briefly, and then Sheena Scott will also address one of the issues there. Then what we'd like to do -- we'll try and do this as quickly as possible -- is address some of your questions.
Essentially, it's our position that the common law is quite clear that children may consent to medical treatment if they have the capacity to understand the nature and consequences of the basic common law position. The position taken in the Children's Aid Society of Metropolitan Toronto brief seems to suggest that its interpretation was that the Child and Family Services Act modified that substantially, so that in a sense it was in a position to force children to undergo certain medical procedures to which it was consenting on their behalf.
One example given was a situation where a girl is brought in who discloses sexual abuse. Their position was that the reality of the physical examination to determine whether or not she had been sexually abused was non-negotiable; where it took place and whether she had friends with her at the time was something she had control over, but the issue of the examination itself was something the CAS would be consenting for. It's our position that this in fact is battery. If in fact that's what they're doing, they are forcing kids against their will, and that's just wrong in law.
Actually, we find it quite appalling that they would consider forcing an adolescent to undergo that kind of internal examination at a time when it may be very traumatic for her. In our view, in many instances that could be a further example of abuse.
In fact, a recent case we had in our office showed that those kinds of examinations with respect to evidence of abuse are somewhat limited, so it seems quite questionable as to whether or not this is something that is absolutely necessary in each case. There was a case where a girl had undergone an internal examination that proved penetration but, because she had started using tampons about three weeks before the examination, it had absolutely no benefit with respect to the criminal proceedings against the perpetrator. We really question the need for that kind of examination, specifically in a situation where the girl is refusing. In our view, the effect of that can be quite appalling if in fact she's being forced to undergo this kind of abuse.
There has been a trend, as Brian has stated, within the child welfare case law that suggests children are having a greater say. The courts are more willing to listen to the child's perspective in deciding the protection issue as it relates to medical treatment. That's the case called "In the Matter of Dianna S," and it's on the second page of our response to the CAS brief -- I'm sorry, it's "In the Matter of the Infant Lisa Dorothy K." The Dianna S case was the 1991 abortion case in which sort of the reverse happened; a child was found in need of protection in order that she could have an abortion, which was also what she wanted.
There is this trend towards listening to children in the protection proceedings. I would suggest that in neither of those cases was the full issue of capacity to consent to medical treatment dealt with. However, there is a history of case law that suggests minors have that capacity so long as they meet the criteria.
There are some specific recommendations that the CAS brief made, ones that we do not support. The first was that the CAS position was that a refusal of treatment by a capable child should be grounds for a protection hearing. That was in the context of parents having the responsibility for providing medical treatment to children and that they were held accountable through the protection proceeding if they did not provide that medical treatment or did not consent to it. The CAS position seemed to be saying that children were not held similarly accountable. I would suggest that they were talking about apples and oranges there, that each individual is held accountable for his own decisions about his own body; and of course he's held accountable. If they have the capacity to understand the nature and consequences of the procedure, good or bad, then they are going to be taking the responsibility for their decisions, whether or not they go through with the treatment.
Second, the emergency provisions within the amended Bill 109 in our opinion are adequate to deal with many of the case examples given in the children's aid brief. Some of them were fairly alarming kinds of situations that we see not that infrequently in our office. It's our opinion that the emergency provisions can deal with those adequately, so I don't see that there's any need to provide for an override for capable children in emergency situations. I think they shouldn't be treated any differently.
Ms Sheena Scott: I just wanted to deal with one of the final children's aid recommendations. That was that parents and/or the children's aid be parties to a capacity review board hearing in all cases. It's our position that this would seriously undermine the issue of confidentiality.
When you or I go to the doctor, we don't necessarily want our parents or anyone else to know what we're going there for. If an issue as to our capacity comes up, we certainly don't want our family members necessarily sharing in the hearing as to whether we're capable or not. Should there be a final decision that we are incapable or an issue of substitute consent, only then at that time would disclosure be appropriate and the individual would still have the choice as to whether to disclose.
It's essentially our position that the legislation as it stands is sufficient in that it allows for the board to add other parties at its discretion and it could do so in an appropriate circumstance, but I think it would fly in the face of the basic principles of confidentiality and would discourage children and youth from seeking medical treatment, especially around sensitive issues such as birth control and abortion, if they could not seek a doctor's advice in confidence without potentially having their parents or the children's aid a party to their capacity review board hearing.
Now we'd like to answer any of your questions.
Mr Kwinter: I'd like to pick up on some of the things you just talked about. You refer to one matter on page 3 of your response to the Children's Aid Society of Metropolitan Toronto. It has to do with the whole idea that if a minor, someone who is aged 12, which is the bottom limit, is explained the repercussions or ramifications of a particular action he should have that right to make that decision as long as the person who is prescribing the treatment is satisfied that individual understands what is happening.
What you say at the top of page 3 is that they are held accountable through the consequences of refusing or consenting to treatment. What you had just said is, good or bad, at least they're accountable; they're going to suffer or they're going to benefit, but they have made the decision.
That gives me a lot of problems. A 12-year-old may understand in the context of a 12-year-old's experience and may give verbal agreement and talk about it, but he's still 12. They may make a decision that may be irreparable for the rest of their lives, but for you to say, "So what? They were told about it. They made the decision. Good or bad, they made the decision," totally negates parenting, totally negates the idea that experience is something that is valuable and that as long as you understand it and as long as you comprehend, it's your decision to make. I find that very difficult.
I find that difficult as a parent of four children who are all married and still come to me for advice. Most children find that the older they get, the smarter their parents get, because they suddenly realize that some of the decisions they have made have been in their best interests.
I understand there is a need to protect an individual's rights, but there's also an obligation, whether it's on the part of the CAS or parents, to exercise some kind of -- I don't want to use the word "control" because there's a negative implication -- some sort of advisory capacity to make decisions that person just doesn't have the capacity to make.
I know you're going to say, "Well, we're saying if they have the capacity," and I'm suggesting to you I don't know of a 12-year-old who has the capacity to make a life-altering decision in a 12-year-old experience of that particular child. There may be, in some instances, a situation where someone has to make that decision for them, even though they can verbalize what is being said and the doctor can say, "Do you understand what I'm saying to you?" They say, "Yes, I understand; this is the decision that I'm making." It may be the wrong decision and you're saying: "So what? They at least made the decision and they will bear the consequences of it." Do you have anything to say about that?
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Ms Scott: I just want to say something briefly about what you said about an advisory capacity. Certainly, we would agree with you that parents and, in the appropriate case, the CAS would have that capacity to advise. That's one thing the CAS didn't deal with in its brief. Very often they do engage, as Brian was saying, in trying to involve the youth in treatment and that's a very valuable thing. But there's a line to be drawn between that and making the decision for the person if he or she is in fact capable. I think Brian had something he wanted to say.
Mr Weagant: There's an irony in the politics of age cutoffs. I don't know which party you're with, Mr Kwinter, but I'm sure it's one of the parties that supported criminalizing children under the age of 12. I believe Mr Scott was one of the people who pushed to have the Young Offenders Act age lowered. Mr Scott went to a conference of attorneys general from across Canada to make it easier to have teenagers treated as adults when they're involved in certain types of behaviour.
I have a hard time reconciling official positions around the age thing. We criminalize these people. We make them responsible in every other way for their actions. All we're saying is that they should have the ultimate decision, as well, over things affecting their bodies.
No one is saying this legislation says doctors can't involve the parents of younger children as they do now. Parents routinely go into doctors' offices with their children and the decision is made all at once. No one's saying the family should be cut out; we're just saying there's a final line and it should be the competent adolescent's decision.
Mrs Sullivan: On page 2 of your brief -- and this is, I gather, your real brief, rather than the comments on other briefs that have been before us -- you are speaking about the capacity review board and suggesting that a person ought to be able to have a right of appeal to the capacity review board if that person has requested a medical treatment from the doctor which the doctor has refused to provide.
Ms Milne: I am just wondering where you're referring to.
Mrs Sullivan: Page 2 of your brief, submissions on amendments to Bill 109 re rights advisers and counsel.
Ms Milne: Right. The wording of that particular section is with respect to something other than a psychiatric facility or prescribed health facility, so it was with the other group. We don't know, essentially, what you're talking about there. One of our general comments was that many of the provisions within the act relate to regulations that have yet to be set, so we really can't comment specifically on how those affect this group of our clients.
Our reading of it was that the triggering mechanism was an objection to the treatment or a request for a rights adviser. It didn't seem to cover, in the specific wording, a situation where a young person went to the health practitioner, requested a treatment and was turned down, unless they specifically asked for a rights adviser.
In our review of that section, it just seemed too narrow a situation. We were recommending that it be expanded to say that the rights adviser would be notified if the person objects to the health practitioner's finding of incapacity or disagrees with the treatment or refusal to treat. So if there's a situation in which a health practitioner is saying, "We will not provide the treatment that you're asking for because we believe you are not capable," then that in itself will be the triggering mechanism, rather than having them specifically request a rights adviser, because they may not know they have the right to request that.
In my reading of it, I think it is just that there seemed to be a slight oversight, but the difficulty we had was that it covered only situations other than the psychiatric facility or prescribed health facility. Treatment is a controlled act under the Regulated Health Professions Act, and there's a lot of vagueness as to what treatment was being referred to in that particular section.
Mrs Sullivan: That's not the way this reads. The way this reads is that the first reason the rights adviser should be called in is if the practitioner finds the person incapable, which is now included in the proposed amendments; and the second reason the rights adviser would be called in is if the patient himself or herself has requested that the health practitioner provide a certain medical treatment that the practitioner has refused to provide.
Ms Milne: I'm reading subsection 10(4). That is a specific reference to it. It says:
"A health practitioner who finds that a person who is 12 years of age or more is incapable with respect to a treatment shall ensure that a rights adviser is notified...if,
"(a) the finding is made in a psychiatric facility or prescribed health facility; or
"(b) the finding is made" within the other facilities or the other situations described "and the person objects to the treatment or requests a meeting with a rights adviser."
So it was either/or those two situations, and that's sub 10(4)(b).
Mrs Sullivan: And your recommendation, which is on page 2 of your brief --
Ms Milne: Is that this very small section be expanded to include --
Mrs Sullivan: Expanded quite substantially, and probably against the rules of the College of Physicians and Surgeons.
Ms Milne: The difficulty we have is that it's hard to comment specifically on where this fits in when we don't know what's contained in all the regulations that are supposed to go along with the act.
Ms Scott: Essentially, if someone refuses you a particular treatment, then you should have the mechanism to access that treatment in those circumstances as well.
Mrs Sullivan: Why?
Ms Milne: In the one sense, the health practitioner who has found the person incapable requested a certain treatment. I'll give an example -- I'm not certain if that particular scenario would fit within this section -- a situation where the young person requests an abortion. Just for argument's sake, if it fits within that section, then unless the person objects to the treatment -- do you see what I'm saying? It's just not broad enough to cover a situation where they want the treatment. They're not objecting to the treatment; they want it, and the health practitioner says, "No, you're not capable to consent to it."
Mrs Sullivan: Certainly, that's not the way your recommendations read, and I find the planning problematic.
Ms Milne: We made a specific reference to 10(4)(b) with respect to that, and we weren't talking about it generally. As we said earlier, we generally support the amendments. The recommendations in our supplementary brief are very specific because they're just more fine-tuning in that very specific section.
Mr Sterling: I would like to understand where you are coming from. Can you tell me who you represent?
Ms Milne: Our client group?
Mr Sterling: No. How are you funded?
Ms Milne: We are a legal aid clinic, a specialty clinic that represents low-income youth. Our clients are under 18. That's essentially it.
The Chair: Excuse me, Mr Sterling, could we recess for five minutes, being as we don't have any sound system? A five-minute recess.
The committee recessed at 1600.
1603
The Chair: I'd like to call this meeting back to order. I understand all our problems are fixed.
Mr Sterling: I was just asking Justice for Children and Youth, I find your position, that when skilled people around a child thought the child should be treated, the decision or the consent of an immature person was more important than the illness that might follow from not taking that treatment, an amazing position for you to put forward. Am I correct in assuming that is your position?
Ms Scott: If the child is capable, then we get into the issue of capacity.
Mr Sterling: That's your position?
Ms Milne: You have to make the assessment as to whether or not the person is capable. I suppose that immaturity plays a role in that kind of assessment, although we don't know what the specifics are of the capacity assessment. Our position is based on the assumption that we are talking about children who are capable. For the most part these are going to be adolescents over the age of 12, so they are going to fully comprehend the nature and the consequences of the decision they are making.
Most treatment decisions are decisions. What's going to happen is not a given. The people have a choice. Our position is that the young people who are capable, who understand the nature and the consequences, should have that choice.
Mr Sterling: But my question is about a person who is 12 or 13, who has suffered from sexual abuse, and there is a need perhaps to examine that young woman. She understands what's happened to her and she refuses. You are saying that the state or the parents should not step in and force that treatment, even if it's going to cause illness, after that?
Ms Milne: I believe the state and/or the parents -- assuming that the parents are involved as a support in that situation, which is not always the case -- have a role in terms of counselling that young person.
Mr Sterling: We all agree with that, but we know there's --
Ms Milne: I think that's the process. I don't think you force that girl to undergo a very intrusive procedure because you think that's a necessary part of the investigative tool for a protection hearing, which is what we're hearing from children's aid societies that they want to have the power to do. I think if things are explained properly, that young person is going to make a decision in her best interests. It has been our experience with young people that they will. I don't think they should be treated any differently than an adult in the same situation.
Mr Sterling: You are saying that the right to decide for an immature person, in spite of the advice by the parents, the physicians and everybody else that this person is going to become ill, the right to make that decision by a 12- or 13-year-old woman is more important than the proper treatment of that young person? That's what you're telling me.
Mr Weagant: In a vacuum, yes; the answer is yes.
Mr Sterling: Okay, thank you.
Mr Weagant: But the specific example, surely -- let me throw the ball back at you. How would you conduct an investigation on a victim of sexual abuse at that age who was saying, "I don't want you to do an internal examination"? Could you just describe for everyone what you would do in a situation like that if you didn't have the cooperation of that young girl?
Mr Jim Wilson: I think the position of the children's aid society was that they do not -- unless you have some evidence or something you're trying to tell this committee in terms of accusations to the children's aid society, my understanding of their presentation to us this afternoon and their written brief was that they wanted the ability to give consent as the guardian of the child. I don't think there was any discussion of forcing. Those were your words. You had a setup question from Mr Morrow to the children's aid society. It was a follow-up, then, and you took from the children's aid society's response that they would somehow force the young woman to undergo this examination. I thought the question in the law was whether consent could be given for that examination.
Mr Weagant: If consent is a meaningless concept, what are we doing here? If you see it as consent and then the young girl can still say no, then really it's her consent that we're talking about.
Ms Scott: What's the logical consequence of their consent? Is it to put the girl on the table, open her legs up and stick the doctor's hand in? That's what you were implying should be done without her consent.
Mr Weagant: The bottom line is, is the girl going to control that situation or is it somebody else through their consent, if that's what consent really means? I thought that was what we were here talking about. There was, as far as I know, no setup question put by us or Mr Morrow. You've got your facts wrong.
Mrs Sullivan: No, there was a setup question. It may not have been put by you, but it was a setup.
The Chair: Thank you, Mr Wilson. Any further questions or comments?
Mr Sterling: As far as Youthdale treatment is concerned, I think you have portrayed its position wrongly here. As I took it from their brief that their position was that the process that could be put forward by a young person under their care would forestall treatment for an unnecessarily lengthy period of time. They could use two acts, where they have one act to forestall that treatment, and therefore their efforts in terms of trying to help young people out would be fruitless or would be thwarted.
I did not take from their brief that they wanted to in any way get around the consent of the parents or the people and the individual involved, but that they wanted to get on with treatment within a reasonable period of time, and that they are a very busy agency because they are the agency of last resort; they have eight beds which are constantly sought. That was their position as far as I was concerned. It was that this was going to add to the existing processes, which was their greatest concern.
Mr Weagant: I was here for their presentation and you asked them specifically what kind of treatment it was they were talking about. They have a locked unit and they said that many times kids want the containment that offers and they offer this kind of engaging personal therapy. I go back to the original comment. How is that enhanced or thwarted in any way by any piece of legislation? Either the kids are going to engage or they're not. Everything is determined by the skill of the front-line worker.
1610
Mr Sterling: If this is, as they say, the residence of last resort, the children who are coming to them are very suspicious of everybody in society and therefore in order to gain the kind of confidence that is necessary, they need some kind of time in order to gain their confidence. Their objection with regard to Bill 109 is that the individual, because the individual is advised when he arrives at the scene that he can have advice, in taking that advice and being very suspicious of everybody, can forestall treatment as long as he possibly can. It is a very, very tenuous time with regard to the situation that arises. I think you've portrayed them as being against anything that brings into question the child's consent. That's the way I took it.
Mr Weagant: What you're talking about is dialogue with someone who's living there. It's something that happens on a minute-by-minute basis and it's a practical matter now. It's the bringing the horse to water problem. You can sit the kid in the psychiatrist's office and if he doesn't want to talk, he's not going to talk that day. I don't see where any of that's going to change. I understand what you're saying. I'm not portraying them in any particular way. I'm portraying the problem in a particular way. It's a more practical question than just, "The law says you've got to talk to me."
An interesting fact is that Sick Kids' doesn't have a locked unit any more; 6E is unlocked. It wasn't clear in 1988 whether they had to have all the protections under the Mental Health Act, but Sick Kids' decided to let the spirit of the act be in play. They arranged through legal aid that every kid who comes into 6E is given his rights, and if he wants to speak to a lawyer outside the hospital, our office is on call. Since 1988, three kids have asked us to come over and in none of those did they want to do anything legal about their situation. They just wanted to confirm what their options were in life.
The floodgates argument, the ramifications of this, I don't know is necessarily going to happen. We're here to say that other people are telling you it's going to close the system down; we're saying that there's enough evidence out there to suggest that if it's done properly, nothing may change.
Mr Sterling: I just want to say one more thing. The big difference between them and you is that they are responsible for the treatment of the kids; you aren't.
Ms Scott: The legislation, we feel, is sufficient. There are provisions in terms of emergency treatment for various types of procedures, including intrusive procedures which could potentially come up at Youthdale. It would be our position that they are sufficient in order for the people at Youthdale to accept that responsibility adequately and properly and that the legislation will not impair them unduly.
Mr Owens: Contrary to my friends opposite, I found your presentations to be rather enlightening. I think that in this situation we tread a fairly fine line between the rights of the child and the rights of the state to intervene in situations. I would tend at this point to want to default to the rights of the child and I think the situations you have outlined in your brief quite reasonably demonstrate the need for the consent-to-treatment legislation.
In terms of your comments with respect to clause 10(4)(b), I think you hit the nail right on the head. It's not only a situation where treatment is being refused, but in some smaller communities, some small-c conservative physicians may in fact refuse to provide an abortion to a young woman for whatever reason he or she may deem as being reasonable. That kind of situation needs to be dealt with in legislation.
One of my concerns with centres like Youthdale -- I'm not pointing the finger at them particularly because they are an acute care setting and, unless I'm corrected, it's my view that the emergency procedures under this legislation would enable them to provide whatever treatment is required. I would agree with you folks that my interpretation is that it tends to be verbal and collegial as opposed to coercive and tie the kid down. I don't think that kind of treatment works in any kind of setting. Having had to visit the Hospital for Sick Children on a number of occasions as a young person and being faced with a needle or any kind of treatment wasn't always a pleasant alternative, but there are ways and negotiations and it may take a little bit more time. Again, if the situation is so serious that an intervention has to be made immediately then the emergency provisions would tend to kick in.
I certainly empathize with your brief and I know your group does excellent work. I have had the pleasure of working with some counsel from your organization and I encourage you to keep coming back to this committee and to this government advocating for the rights of children and adolescents in the manner that you've done; it's the kind of input.
Mr Sterling had a point that you don't care for the children. In fact, you do. As a counsellor, you certainly have a duty to those children, and there is a penalty for not representing those children effectively. There are penalties and there are sanctions.
Mr Sterling: They don't pay any penalty; that's the problem.
The Chair: Order, please.
Mr Owens: Mr Sterling made a point earlier about comments and being offended at comments. I can certainly tell Mr Sterling that I was clearly offended not only by his line of questioning --
Mr Sterling: Good. I can understand that.
Mr Owens: -- but the cheap shot he took at this organization.
Again, I thank you for your excellent presentation and urge you to continue to do the excellent work you do for kids in this province.
The Chair: As was stated at the beginning of this whole process, the Chair is going to exercise a little bit of flexibility. We are over time, but I'll allow Mr Kwinter one brief comment.
Mr Kwinter: I just want to throw out another example, because I've listened to the Youthdale scenario, which is at the extreme end. I've listened to the story about the young girl who really doesn't want to have an internal examination performed on her, but let's talk about a situation Dr Goldbloom talked about this morning from Sick Children's Hospital.
A youngster comes into the emergency ward and he's got a shattered leg. The doctor sits down and says to him: "We're going to have to operate. We're going to have to open up your leg. We're going to have to drill three holes and put in three stainless steel pins, and that's going to fix your leg; if you don't you're going to limp." The kid says, "Well, how badly am I going to limp?" He says, "Well, you're going to have a little bit of a limp." He decides that the idea of having someone drill into his leg and put in screws and cut him open is far worse; he can tolerate a little limp. He says: "You know what? I don't want the operation. I'll limp." Because it isn't life-threatening, the doctor can't do anything about it. Do you think it's responsible to say: "I understand it. You've told me what it is. I'm convinced that I can tolerate the limp for the rest of my life"? This is someone at 12. What do you do?
Mr Weagant: If the 12-year-old kid is there with his parent and the kid says, "No way anybody is touching me," what happens now?
Ms Scott: Don't you think the doctor would be concerned about a battery suit if he would have touched that kid when the kid was refusing now?
Mr Weagant: Isn't there, as my friend said, a collegial decision made and parental authority prevails?
Mr Kwinter: You're saying that parental authority has nothing to do with it.
Mr Weagant: I'm saying that parental authority is going to influence that kid ultimately cooperating. I was 12 once; I remember how cooperative I was with any of that kind of stuff. At the end of the day, I generally agreed with whatever was being offered once I was convinced it was in my best interests. Right now, if that kid is confident the doctor shouldn't be treating him, but for some reason that kid is being treated today, I'm just wondering how it's happening now.
Ms Scott: Also, the legislation speaks of serious bodily harm or a risk of serious bodily harm, and that also leaves some flexibility.
The Chair: Mr Weagant, Ms Milne and Ms Scott, on behalf of this committee, I'd like to thank you for taking the time out this afternoon and giving us your presentation.
Just a reminder, there'll be a subcommittee meeting at 10:30 tomorrow morning. This committee stands adjourned until 10 o'clock tomorrow morning.
The committee adjourned at 1621.