HOSPITAL FOR SICK CHILDREN, DIVISION OF ADOLESCENT MEDICINE
ONTARIO PSYCHIATRIC SURVIVORS' ALLIANCE
CONTENTS
Tuesday 16 June 1992
Advocacy Act, 1992, and companion legislation
Hospital for Sick Children
Dr Françoise Baylis, associate, bioethics department
Dr Eunice Goldberg, director, division of adolescent medicine
Dr Miriam Kaufman, staff physician, division of adolescent medicine
Ontario Psychiatric Survivors' Alliance
Terry Milne, research and proposal coordinator
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:
*Owens, Stephen (Scarborough Centre ND) for Ms Akande
*In attendance / présents
Also taking part / Autres participants et participantes:
Bentivegna, Giuseppa, counsel, Ministry of Health
Clerk / Greffière: Freedman, Lisa
Staff / Personnel: Swift, Susan, research officer, Legislative Research Service
The committee met at 1554 in room 151.
ADVOCACY ACT, 1992, AND COMPANION LEGISLATION / LOI DE 1992 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Resuming 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. To facilitate things we are discussing the amendments because this is the second round of public hearings. So if we keep our comments and questions on the subject of the amendments rather than the principle of the whole thing, it would make things a lot easier.
HOSPITAL FOR SICK CHILDREN, DIVISION OF ADOLESCENT MEDICINE
The Chair: Our first presenters are from the division of adolescent medicine, Hospital for Sick Children. Could you please identify yourselves for the record and then proceed. You'll be given about a half hour for your presentation. The committee would appreciate it if you kept your remarks to about 15 or 20 minutes to allow time for questions and comments.
Dr Miriam Kaufman: I'm Dr Miriam Kaufman, a staff physician in the division of adolescent medicine at the Hospital for Sick Children and an assistant professor in the faculty of medicine at the University of Toronto.
With me is Dr Eudice Goldberg, who is the director of the division of adolescent medicine at the Hospital for Sick Children and an assistant professor in the faculty of medicine at the University of Toronto. To my far right -- geographically not politically -- is Dr Françoise Baylis who is with the department of bioethics at the Hospital for Sick Children and a lecturer in the faculty of medicine at the University of Toronto.
Thank you very much for inviting us back to comment on the revisions to Bill 109. We're very pleased to see that our concerns about the bill, which we expressed at the previous round of hearings, were taken seriously and incorporated into the new draft of the bill.
This being said, we are here today first to explicitly endorse certain changes to the bill, second to raise specific questions for your consideration to which we would appreciate an official comment following our presentation, and third to make one suggestion for a minor change to the revised bill.
First, we would like to say that the elimination of a specific age of consent to medical treatment is vital to the effective implementation of this bill. It is important for this government to recognize, along with the governments of Alberta, Manitoba, Nova Scotia and Newfoundland, that people are different from each other and need to have their capacity to consent evaluated on an individual basis. Those found capable of consent to medical treatment should be able to provide a legally valid consent to treatment.
Second, it is equally important for this government to explicitly allow parents under 16 to qualify to give or refuse consent to medical treatment on behalf of their children, provided they are capable, with respect to treatment. It would have been a grave injustice for this government to deny young parents this right and responsibility.
Third, the changes to the bill amending the grounds on which emergency treatment may be initiated without consent are important. No one wants this legislation to impede treatment when a patient is experiencing severe suffering or is at risk of suffering serious bodily harm.
The previous draft limited emergency interventions to situations in which a person was likely to suffer serious bodily harm within 12 hours if treatment was not administered promptly. We have two specific questions for your consideration.
First, would institutions, and in particular paediatric institutions, be able to avoid potential difficulties by refusing to provide certain services to young people based on the complexity of determining capacity and obtaining consent? For example, one could envision a paediatric hospital refusing to perform certain surgical procedures such as breast reduction or therapeutic abortion for those under 16, based on an argument that it was too difficult if not impossible to determine capacity to consent to treatment for these specific interventions. If a paediatric hospital were to do this, would it be open to a challenge under the Canadian Charter of Rights and Freedoms, sections 7 and 15?
Second, why was section 23.1 introduced? We are puzzled by the addition of this section which seems to let any health practitioner override the judgement of a family member who chooses to refuse treatment. This section of the bill seriously disempowers family members and in particular the parents of children. There's already a provision in the bill for emergency treatment without consent and there's already a mechanism in the Child and Family Services Act for dealing with parental refusal.
Clause 37(2)(e) of the Child and Family Services Act is used by health practitioners when a procedure is considered medically necessary and the parents won't consent. This act has recently been revised to be more culturally sensitive and 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.
We have, as I said, one small proposed revision to the bill. Subsection 16(10) requires that family members who are consenting for incapable relatives make a statement as to the appropriateness of their giving or refusing consent. Subsection 24(5) provides protection from liability for health practitioners who rely on the accuracy of a statement made by family members as to the appropriateness of their giving consent "unless it is not reasonable to do so."
Section 25 provides protection from liability for family members who make such a statement in good faith. Subsection 44(1) exposes family members to a fine of up to $10,000 for any false statement.
To protect family members and to provide health practitioners with reasonable grounds on the basis of which to rely on any statement made by family members, we recommend that section 45 be amended to explicitly require of the Lieutenant Governor the prescribing of a form for statements from family members. The prescribing of such a form should not be at the discretion of the Lieutenant Governor under clause 45(c) about the prescribing of other forms.
Finally, although we are supportive of the removal of a minimum age of consent to treatment, there is no doubt that this change will introduce specific difficulties for some health practitioners. For example, the treatment of behaviourally disordered children may become more difficult as a result of this proposed legislation, and certainly the concerns raised by those who care for these children will have to be addressed.
In addition, other practitioners may have yet other concerns. Our colleagues from the medical advisory committee at Sick Kids' will be discussing some of these with you in the near future.
In closing, we remain convinced that the proposed legislation meets the needs of the majority of adolescents who, under the previous version of Bill 109, would have been inappropriately presumed incapable of consent to treatment.
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The Chair: Mr Wessenger, would you like to respond from the ministry?
Mr Paul Wessenger (Simcoe Centre): Yes. I think the question related, if I remember correctly, to the intention and the purpose of section 23.1. That clause was inserted to cover the situation where the health practitioner believes that the person who is authorized to give consent on behalf of the incapable person is not acting in good faith.
The concern is, for instance, supposing there's a situation where the incapable person's life could be saved by a normal medical procedure and the health practitioner might think the person who is refusing the treatment was doing so in bad faith, because he or she might have an ulterior motive. With an elderly person and a person who might inherit -- that's to give the prime example of where there might be bad faith. So it was felt necessary to give an override to the health practitioner in those circumstances where the health practitioner was of the opinion there was bad faith.
Dr Kaufman: This could definitely be used against families, though. The procedure that people go through now involves getting a court order in situations like that, with children, under the Child and Family Services Act.
One thing that comes up quite often is giving transfusions to children who are Jehovah's Witnesses. In a lot of cases with that court procedure, even though it's usually short and in the middle of the night, it is very important for families to be able to go back to their church and say, "The court said they had to do it." To be ordered to do that somehow or other is much more acceptable to those families than to just have a doctor decide that should be done.
Mr Wessenger: Yes, I understand the point you raise and I think it is conceivable. It is possible that a health practitioner in the case of, say, the Jehovah's Witness and the blood transfusion and the child situation -- maybe I'll ask counsel to also comment on that aspect. Although that wasn't the particular intention of the section, I think I'll ask counsel whether they could construe that as possibly being used for that purpose.
Ms Giuseppa Bentivegna: The thing is that section 23.1 was inserted to cover because, it being an emergency, there wouldn't be time to question the propriety of the actions of the substitution. Therefore the practitioner or even another family member couldn't go to the public guardian and trustee to have him or her replaced, the idea being that there wouldn't be any time. If it's an emergency but the person is available to give consent, in the case of the Child and Family Services Act, that would still apply because, if it was a aren't refusing, then it would still be a case of protection and they could still go that route in the case of a child.
This allows the lifesaving treatment if there is really no time to properly question. The practitioner has to have reasonable grounds to believe either that the substitute is not acting in the best interests of the person or not acting in accordance with the advanced wishes of that person. For the advanced wishes it would have to be somebody 16 and over, so that certainly wouldn't apply to children.
Dr Françoise Baylis: I think our concern is not that people couldn't continue to use the provisions that are available under the current legislation in terms of finding a child in need of protection, but that you would have another alternative. We feel that perhaps this alternative is not an appropriate one, because it removes a certain kind of procedural mechanism and protection that ensures that people with different values and beliefs at least have an official forum that is supposed to be unbiased, in which they can at least express their viewpoints. The court may find against them, but at least there is some kind of procedural mechanism.
In our understanding and reading of the bill, that procedural mechanism would not be in place in this kind of situation, or at least there would be the option of not using that procedural mechanism. It would be much quicker not to have to go through that system and justify, "We have an emergency situation and they're not acting in good faith, or, "They're not complying with section 14 and therefore we'll go ahead and treat." I think what we're trying to say is that we find that disrespectful to certain groups and potentially not appropriate.
The Chair: Further response?
Mr Wessenger: I would just say that I think it is a difficult situation. One of the difficult aspects for the health practitioner at the same time as well is the situation where there is no time to get a court order, for instance; then the practitioner is placed in a very difficult position. It is a question of balancing, I agree.
I think the practitioner would probably balance on the side of saving the life in the circumstances against the possibility of even having a civil liability. I think that would be the normal decision that the health practitioner would make, confronted with the choice of not saving a life and then being sued on that aspect or saving a life and being sued. I think the health practitioner would make the choice of saving the life and risk being sued rather than taking the other choice.
I agree that it could be utilized in the emergency situation, but whether one would criticize a health practitioner for making that decision, I don't know. I certainly couldn't criticize a health practitioner for erring on that side in those circumstances.
Dr Kaufman: Our other question was the one about whether an institution could make a blanket statement that, for instance, no one under the age of 16 or 18 is capable of understanding a procedure and therefore we're not going to provide it, such as therapeutic abortion.
Mr Wessenger: First of all, it would be contrary to the act if they did that. Second, I think there are other alternatives with respect to a hospital, particularly since I know we are going to be reviewing the whole question of the new Public Hospitals Act and the concept of the social contract. I think certainly that would be part of the social contract of every hospital, that it has to comply with the provisions of the law basically.
I would not anticipate that being a problem. I anticipate that being more of a problem with respect to an individual health practitioner. I think that is where the difficulty will arise and we need to do a good educational job with respect to health practitioners to educate them to the fact that most young people at, for instance, age 12 would be capable; most of them at 12 are capable. So I think an educational job is needed among all health practitioners. I think the medical practitioners are better educated perhaps in this area than some of the other health practitioners.
The Chair: Questions or comments?
Mr Robert Chiarelli (Ottawa West): Just a very brief comment. Dr Kaufman, I want to thank you and your team for your ongoing participation. I think your considered study of the original bill and your original brief and your ongoing communications have made a difference to the legislation. I just want to thank you for your participation.
The Chair: Further questions or comments? Seeing none, Dr Kaufman, Dr Goldberg and Dr Baylis, on behalf of this committee I would like to thank you for taking the time out this afternoon and coming out and giving us your presentation.
ONTARIO PSYCHIATRIC SURVIVORS' ALLIANCE
The Chair: I would like to call forward our next presenter from the Ontario Psychiatric Survivors' Alliance of Ottawa. Good afternoon.
Mr Terry Milne: Good afternoon.
The Chair: As soon as you're comfortable, could you please identify yourself for the record. You'll be allowed about a half-hour for your presentation. We would appreciate it if you'd keep your comments to about 15 minutes and allow time for questions and comments from each of the caucuses.
Mr Milne: My name is Terry Milne. I'm the research and proposal coordinator for the Ontario Psychiatric Survivors' Alliance of Ottawa-Carleton. I'd like to thank the committee for inviting me back one more time. I was here on February 10. I'm hoping this is the last time I am back on this matter. I have prepared a written brief that I'm going to forward to the committee in a couple of days. I would just like to spend a few minutes hitting the high points and expressing a couple of our concerns. Some of them may incur some displeasure because I'm going to speak to our concern that we are back here again.
The Ontario Psychiatric Survivors' Alliance, for those who don't know, is an organization dedicated to providing a voice for those people who are survivors of the psychiatric system in Ontario. We are funded by the consumer survivor development initiative. There are several chapters in Ontario and one of our primary mandates is to advocate on behalf of our members and on behalf of those who are in the psychiatric system.
When I was here on February 10 with two of my colleagues, we gave tentative support to this package of legislation. That support was based on a grounding in effective advocacy. In other words, advocacy was the basis of our support for this legislation. We understood that when the minister introduced this legislation, she was quite clear that it was the basis of a package of legislation and that it would inform all of Bill 108 and Bill 109.
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Hugh Tapping, one of our members, was here on March 25 speaking for the Canadian Mental Health Association of Ontario, and the Canadian Advocacy Committee was here last month. Both stated a concern that I would like to state today. That is that there is a pressing and urgent need now for this type of legislation.
For too long we've been the victims of having treatments and decisions imposed on us that were later found to be to our detriment. I would like to remind the opposition parties of their support for the principles that are enshrined in this legislation. I would also like to commend the government for having the courage to bring these principles forward.
I would like to make three points regarding this and then I'll leave it. The first is that there is a commitment to these principles by all parties. The second is that political change like this requires courage. We recognize that. All of our members do. There will be disaffected groups, and no amount of compromise will speak to all of those groups. The third and final point is that justice demands that we pass this legislation despite that and give vulnerable people in this province power over their own lives. That's all we ask for.
Previous hearings have come up with a number of useful changes to the Advocacy Act. Four which came to mind in our readings were provisions for enhanced training and accountability of advocates, a clarification of the relationship between advocates and substitute decision-makers, the strengthening of the provisions for unstructured advocacy and better and expanded access to records. Our primary concern at this point is with delay. We would ask the government to use its majority to pass this legislation without further delay.
However, now that we're here, we would like to address a couple of points that weren't looked at in the last round of hearings. The first two apply to Bill 109. In that bill we spoke the last time to our problem with the concept of implied consent. We recognized that this was a legitimate concern on the part of other groups, but for our group it has often been the basis of having treatment imposed on us. The second also concerns Bill 109; that is, to our understanding, there are no effective sanctions contained in that bill and that is something we would like to see added. Both Bill 74 and Bill 108 make adequate provision, as far as we understand, for sanctions.
Also, the last time we were here we spoke of our grave concern with thoughts of folding other programs into an advocacy commission during the implementation stage, and we would like to reiterate at this point that we would find this unacceptable. The whole point of an advocacy commission is to provide independent advocacy for our people. You can't wish away conflict of interest. If there is an institutional connection, there's going to be that conflict.
Our final point is probably the largest particular concern I'd like to raise today. Our reading of Bill 109 -- and we're asking for clarification from different people here -- has raised an understanding that it's been proposed that in cases where incompetency with respect to treatment is being declared, people are not going to have a right to advocacy, that a rights adviser will be appointed -- I guess I have a question of who would appoint that rights adviser; it's not at all clear in the revisions -- and whether or not the person understood his or her rights or not, treatment might proceed. Effective advocacy demands that advocacy be provided in all cases. That should be fairly straightforward, and I think we would be unwilling to back down from this, that we feel this revision must be dropped.
In conclusion, our contingent support for the package of legislation certainly continues, but it is based as always on effective advocacy. I went over the concerns that still remain from Bill 109 and Bill 74. In closing, the point I'd like to make is that for too long the playing field has been quite slanted. There were discussions around the office before I came down here today. The point was made that oftentimes the concept of a level playing field is a relative concept. Those that have had it slanted in their favour for a long time tend to see it as slanted against them when it becomes level. All we are looking for is the right to advocate on our own behalf. That's all we ask. We are not asking to make decisions on anyone's behalf. We are not asking for power over other people. We are asking for protection and the right to take control of our own lives.
The Chair: Questions and/or comments?
Mr Chiarelli: First of all, I want to thank you very much for continuing your communication with respect to the legislation. One of the concerns you've expressed is something that has concerned me and a number of other people; that is, at the present time there are advocates in place. A lot of them are funded through government grants or different programs. They're connected with the system in some fashion with respect to funding.
The issue is that under the current legislation there's going to be a commission established and there are going to be paid advocates, etc. I just wonder if you have been satisfied in any way that there are proper transitionary features to the legislation. In other words, you may have someone who is funded as an advocate now. Will they continue in that particular role? Will their funding be rolled in and used for theAdvocacy Commission? Are you satisfied in that particular area that the implementation will not be disruptive to advocates who are presently in the field?
Mr Milne: I'm concerned that advocates who are presently in the field may become part of an Advocacy Commission. In all fairness, I am not that clear -- you've caught me off guard -- on how implementation will take place. I think, in all fairness too, that certainly the Advocacy Commission has to be on the ground for some period of time before it's expected to operate, and it has to be given that time.
My primary concern is that we don't have a group like the adult protection service workers folded into the Advocacy Commission, because we want this to be much more a consumer-oriented, consumer-driven process. I don't know if that answers --
Mr Chiarelli: If I might add, I have talked to a number of advocates who are in the system now, fully or partially funded through government funds, and I've specifically asked the question: "Do you know how you fit into this new system? Will your funding continue? Will your terms of reference continue, or will you, in effect, become part of the Advocacy Commission?"
Quite frankly, none of them has been able to give an answer. Therefore, I'm not looking to be overly critical of the government and I would like to pose a question to one or some of the parliamentary assistants and simply ask a question: How will that transition take place? What will happen to the people who are advocates in the field at the present time? What impact studies exist or are contemplated to generate the transition? In fact, do you need a transition?
If in point of fact you're going to leave the present advocates in place, there's no need for a transition because you're going to have the Advocacy Commission come in with its new funding and its mandate and start its work. But I think the government has an obligation to everybody who's in the field -- consumers, if I can call them that, as well as present advocates -- to tell them what's in store.
There's a lot of uncertainty out there, and in fact one of the major criticisms of the initiative is that yes, we need advocates; we agree with it in principle and we need more of it, but how do you get from point A to point B and how do you allay the fears of people who are in the field at the present time?
I would really ask the parliamentary assistants who are here to perhaps explain that to the presenter and for my elucidation so when I hear from these groups -- and I still do; they come to my constituency office or they meet us at Queen's Park and the same questions keep coming up -- I would like to have answers for them.
The Chair: Response from any of the parliamentary assistants?
Mr Gary Malkowski (York East): I think it's still too early to say. We're still in the process of defining what that process will look like, but I can say to you that we will get back to you with the answer to that, but not at this time.
Mr Chiarelli: If I can just comment, I think that is an unacceptable answer, given the impact and the nature of this legislation. To be creating legislation which is intended for the public and which is going to impact very seriously on all these hardworking people in the field, advocates at the present time, to say that we'll get to you later and tell you how it's going to impact on you, I just think that's unacceptable. I think there's an obligation on the part of the government to start giving answers. If they expect cooperation from people who have questions and concerns, if they expect cooperation from the opposition parties in the House, if as this gentleman suggests it should be passed quickly, then I think there's an obligation to provide those answers.
Mr Milne: If I may for a moment, this is not the direction I hoped to raise when I made the point. Quite frankly, I realize this is something that's going to happen on implementation and that I hope to be involved with as this unfolds. I have no concern with getting that answer today. My concern is that the Advocacy Commission remain an institutionally independent body with independent employees who can advocate effectively on our behalf and have no other institutional connections. That's my only concern.
Mr Chiarelli: Have you been given assurances of that yet?
Mr Milne: In a less than certain world, I'm relatively satisfied.
Mr David Winninger (London South): On a point of order, Mr Chair: I thought we agreed to extend these hearings to address the amendments to the acts. I didn't realize that we were broadening the scope of these hearings to include policy decisions unrelated to these amendments. That's why I question whether Mr Chiarelli is in order.
Mr Chiarelli: I am probably out of order, and I concede your point, but I thought it was a useful comment to make with respect to the legislation, particularly in view of some of the comments that were made by the presenter. I thought my comments were relevant, although perhaps technically out of order. Given the fact that we are finishing well ahead of time today, I thought perhaps you might be interested in hearing some useful alternative ideas.
Mr Winninger: That would be a fresh approach.
The Chair: Thank you, Mr Chiarelli. I might remind you that some of the amendments are policy decision amendments, so we're going to allow a little latitude in the questioning and comments. Further questions and comments?
Seeing none, Mr Milne, on behalf of this committee, I'd like to thank you for taking the time out this afternoon and giving us your presentation. I assure you that once your written brief comes in it will be distributed to all the members of the committee.
Seeing no further business before this committee, we stand adjourned until next Monday at 3:30 pm.
The committee adjourned at 1622.