NATIONAL ASSOCIATION OF WOMEN AND THE LAW
ONTARIO COLLEGE OF FAMILY PHYSICIANS
ADVISORY COUNCIL ON AGING FOR LANARK, LEEDS AND GRENVILLE COUNTIES
CONTENTS
Wednesday 25 March 1992
Advocacy Act, 1991, Bill 74, and companion legislation / Loi de 1991 sur l'intervention, projet de loi 74, et les projets de loi qui l'accompagnent
National Association of Women and the Law
Lori Stoltz, co-chair, reproductive and health issues working group
Freya Kristjanson, reproductive and health issues working group
Dr Bonnie Burstow
Ontario College of Family Physicians
Dr George Miller, president
Terri Toffen, executive officer
Hugh Tapping
Eldon Hardy
Marjory M. Campbell
Advisory Council on Aging for Lanark, Leeds and Grenville Counties
Nadia Diakun-Thibault, executive director
Sue Goodwin
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président(e): Cooper, Mike (Kitchener-Wilmot ND)
Vice-Chair / Vice-Président(e): Morrow, Mark (Wentworth East/-Est ND)
Carter, Jenny (Peterborough ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
Fletcher, Derek (Guelph ND)
Malkowski, Gary (York East/-Est ND)
Poirier, Jean (Prescott and Russell/Prescott et Russell L)
Sorbara, Gregory S. (York Centre/Centre L)
Sterling, Norman W. (Carleton PC)
Wessenger, Paul (Simcoe Centre/Centre ND)
Wilson, Jim (Simcoe West/-Ouest PC)
Winninger, David (London South/-Sud ND)
Substitution(s) / Membre(s) remplaçant(s):
Ferguson, Will (Kitchener ND) for Mr Fletcher
Johnson, Paul R. (Prince Edward-Lennox-South/-Sud Hastings ND) for Mr Fletcher
Mancini, Remo (Essex South/-Sud L) for Mr Sorbara
Sullivan, Barbara (Halton Centre/Centre L) for Mr Chiarelli
Also taking part:
Spinks, Trudy, Ministry of Citizenship
Ward, Brad (Brantford ND)
Villeneuve, Noble (S-D-G & East Grenville/S-D-G & Grenville-Est PC)
Clerk / Greffier: Freedman, Lisa
Clerk pro tem / Greffier ou greffière par intérim: Brown, Harold
Staff / Personnel: Swift, Susan, Research Officer, Legislative Research Service
The committee met at 1008 in committee room 1.
ADVOCACY ACT, 1992, AND COMPANION LEGISLATION / LOI DE 1992 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Resuming consideration of Bill 7, An Act to amend the Powers of Attorney Act; Bill 8, An Act respecting Natural Death; Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / Projet de loi 74, Loi concernant la prestation de services d'intervenants en faveur des personnes vulnérables; Bill 108, An Act to provide for the making of Decisions on behalf of Adults concerning the Management of their Property and concerning their Personal Care / Projet de loi 108, Loi prévoyant la prise de décisions au nom d'adultes en ce qui concerne la gestion de leurs biens et le soin de leur personne; Bill 109, An Act respecting Consent to Treatment / Projet de loi 109, Loi concernant le consentement au traitement; and Bill 110, An Act to amend certain Statutes of Ontario consequent upon the enactment of the Consent to Treatment Act, 1992 and the Substitute Decisions Act, 1992 / Projet de loi 110, 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.
NATIONAL ASSOCIATION OF WOMEN AND THE LAW
The Chair: I call this meeting of the standing committee on administration of justice to order. I would like to welcome our first presenters from the National Association of Women and the Law. Good morning. Just as a reminder, you will be allowed a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you are ready, could you please identify yourself for the record and then proceed.
Ms Stoltz: Good morning. Thank you very much to members of the standing committee on administration of justice for extending to us the opportunity to appear this morning and present our written and oral submissions on the government's proposed legislative package regarding consent to medical treatment.
My name is Lori Stoltz. I am a litigation lawyer with the firm of Goodman and Carr in Toronto. I am a specialist in health litigation. With me this morning is Freya Kristjanson, a litigation lawyer with the Toronto firm of Borden and Elliot. Ms Kristjanson is a specialist in constitutional litigation. Ms Kristjanson and I are cochairs of the reproductive and health issues working group of the National Association of Women and the Law.
The National Association of Women and the Law is a national, non-profit, feminist organization active in legal research, law reform and public legal education. NAWL's membership is composed of lawyers, academics, students and related professionals. The reproductive rights working group has taken a strong and consistent stand in favour of women's reproductive rights including, in particular, the right of women to abortion. We made oral and written submissions to the Law Reform Commission of Canada on its working paper, Crimes Against the Foetus, to the House of Commons committee on Bill C-43, An Act respecting abortion, and to the standing Senate committee on legal and constitutional affairs dealing with Bill C-43, An Act respecting abortion.
First and foremost, NAWL would like to express its support for the general principles endorsed by the government in Bills 74, 108, 109 and 110. Having said that, the focus of our comments this morning will be upon those aspects of the proposed legislative package we would like to see altered before these bills are presented to the Legislature for third and final reading.
Copies of our written brief have been provided to you. It is the turquoise brief that has been circulated. Our presentation this morning will take the following form: I will deal with the right of pregnant women to consent to medical treatment and then address briefly the need to ensure uniform access of all patients to their medical records. Ms Kristjanson will then deal with access to reproductive counselling and services for persons under 16 and will make some general comments about the legislative package.
Bill 109 does not directly address the capacity of pregnant women to give or withhold their consent to medical treatment on their own behalf or on behalf of the foetuses they carry. Bill 8, however, purports to derogate from their capacity and right to do so by providing expressly in subsection 3(3) that, "The living will of a person is not valid while the person is pregnant."
In a series of recent decisions, including Morgentaler, Daigle, and Sullivan and LeMay, the Supreme Court of Canada has firmly established that a foetus is not a person at law, that the foetus does not have a right to life and that a pregnant woman may abort the foetus she carries independent of the wishes of the foetus's biological father. Therefore, although the issue has not come before the Supreme Court of Canada directly, NAWL submits that the cumulative effect of these decisions is to support the right of pregnant women to accept or to reject a proposed course of medical treatment on their own behalf and on behalf of their foetuses.
Despite the clarity of these judicial precedents from our highest courts, however, the absence of an unambiguous statement of this right by the Legislature troubles physicians and leaves them uncertain of their legal responsibilities and potential liability. This uncertainty recently prompted the committee on ethics of the Canadian Medical Association to develop a discussion paper which recognized the human foetus as the "ethical equal" of its mother at approximately 23 weeks' gestation and encouraged physicians to invoke a legal process to determine whether the clearly expressed wishes of a pregnant woman with respect to her own treatment or the treatment of her foetus might be overridden. This uncertainty also prompted the Ontario branch of the Canadian Bar Association, in the written submissions it prepared for this committee, to ask questions such as:
"Will the unborn have recognizable rights? If a patient refusing or requesting treatment is pregnant, will it be necessary to obtain the consent of the official guardian on behalf of the unborn? Will a father have specific rights to consent on behalf of the unborn in these circumstances?"
Similarly, in its working paper, Crimes Against the Foetus, the Law Reform Commission of Canada recommended the enactment of legislation that in our view would impose criminal sanctions upon women whose conduct during pregnancy may be linked to a developmental abnormality in their foetus and would also likely authorize the imposition of court-ordered medical treatment upon pregnant women, including diagnostic procedures such as amniocentesis, Caesarean section deliveries and possibly foetal surgery, where consent to that treatment is withheld by the pregnant woman.
Finally, a series of lower court decisions in Ontario as well as a number of recent American court decisions demonstrate the willingness of some courts, given the opportunity, to evade judicial precedents, no matter how strong or how clear, in favour of their personal prejudices, to the detriment of pregnant women.
A Belleville woman, for example, was assessed under Ontario's Mental Health Act on the order of a court that declared her foetus a child in need of protection and sought to control her physical person to protect that foetus. This order could have culminated in the woman's commitment to a psychiatric facility as an involuntary patient, a complete and horrifying deprivation of her liberty and autonomy.
Similarly, in a recent American case a court ordered a young woman in her 26th week of pregnancy and dying of cancer to submit to a Caesarean section delivery of the foetus against her clearly expressed wishes. In the words of the court that made this order, "Although the chances that this foetus would survive were slim, the woman herself had at best only two days to live." It is also worth noting that despite this woman's clear instructions from the beginning of her pregnancy that she be kept as comfortable as possible during her pregnancy, regardless of the possible effects upon the foetus, chemotherapy recommended for her by her cancer specialist was withheld from her by other treating physicians on the grounds that it posed too great a risk of harm to the developing foetus.
It is clear, given the position papers and the judicial decisions I have just canvassed, that although many pregnant women in Ontario do not have physical or mental impairments that would identify them as vulnerable adults as that term has been used by the government in identifying the aims and objectives of this legislative package, there is no question in our minds that pregnant women are vulnerable adults in the context of the health care system.
Decisions like these should not be left to judicial discretion and courtrooms are not the place to make them. However, nothing less than a clear statement by this government and this Legislature affirming the right of pregnant women to give or to withhold their consent to treatment on their own behalf or on behalf of the foetuses they carry will eliminate the problem. I would like to point out that this statement we are making is consistent with section 14 of Bill 109, which enumerates the principles that should guide decision-making on behalf of incapable persons. There is nothing in this section that would lead one to believe the interests of the foetus should be at all considered. Accordingly, NAWL urges the Minister of Health to give effect to her stated commitment to the inviolability of the right of pregnant women to automomy, dignity and freedom by adopting the following recommendations.
1. Bill 8 should be amended to exclude subsection 3(3).
2. Bill 109 should be amended to include a provision which expressly recognizes the capacity of pregnant women to give or to withhold their consent to medical treatment on behalf of their foetuses.
3. Bill 109 should be amended to include a provision which states expressly that the fact that a woman is pregnant will not derogate from her right to give or withhold consent to her own medical treatment.
4. Bill 108 should be amended to include a provision which allows an attorney for personal care or a guardian to withdraw from the treatment decision-making process temporarily; that is, without terminating the guardianship or the power of attorney, should he or she be called upon to consider the appropriateness of a treatment or a course of treatment which raises the potential for conflict with strongly held personal or religious beliefs on the part of the guardian or the attorney.
With respect to the question of uniform access of patients to medical records, it should be said that access to one's own medical records is a critical element of one's right to exercise informed consent to medical treatment. Under the current legal regime, however, the rights of patients to examine and copy their own medical records depend upon the context in which the records are created and held, in much the same way as other aspects of consent to health services vary with the health care service and the setting in question.
Unfortunately, Bills 74, 108, 109 and 110, as currently drafted, do not address this problem in any comprehensive way. If anything, they leave patients' rights of access even more uneven than before. Subsection 37(2) of Bill 109, for example, extends to patients the right to examine and copy any medical or other health record but only in the context of a hearing before the Consent and Capacity Review Board. Similarly, section 24 of Bill 74 allows advocates, with the consent of the vulnerable person to whom the information relates, "access...to any record relating to the person that is in custody or control of a facility." This provision has two shortcomings: (1) Access is limited to the advocates of vulnerable persons rather than the persons or patients themselves and (2) the word "facility" is left undefined, leaving it unclear as to whether the medical records of physicians held in their private offices are encompassed by this provision. Patients who do not fall within the scope of either of these provisions are left to the vagaries of the current patchwork of legislation governing the disclosure of medical health records by health care professionals, hospitals and psychiatric facilities, and these are uneven.
Our recommendation, then, is that Bill 109 be amended to include a provision which extends to all patients the right to examine and copy all medical records, including clinical notes, charts and all other material relating to patient care, regardless of where those records are held, subject only, and only if necessary, to the provisions of the Mental Health Act of Ontario.
Thank you. I will now pass the floor to Ms Kristjanson.
Ms Kristjanson: I will be addressing two issues. The first is the access to reproductive health services on the part of individuals who are less than 16 years of age. Second, I will be making some general comments regarding the structure of the system.
I note that the Progressive Conservatives have introduced a motion to amend Bill 109 by striking out section 8, which you will find is the recommendation we have also made. I understand you have probably heard a number of submissions on the age question, so I will be very brief.
1020
Mr Poirier: A very long list.
Ms Kristjanson: Oh, you have. Okay. I think I will talk a little bit about the question of delay and access to abortion services. Our other concerns are set out in our brief.
The Supreme Court of Canada, in the Morgentaler decision, struck down abortion provisions of the Criminal Code in part because the court found that state-imposed administrative delay violates a woman's right to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms. The state-imposed administrative delay in that case was a therapeutic abortion system. We are concerned, however, that a young person who has been found incapable by the physician and therefore must resort to the advocacy and board review systems could similarly encounter delay.
We draw your attention to the words of then Chief Justice Dickson in the Morgentaler decision, who said that in the context of abortion, any unnecessary delay can have profound consequences on a woman's physical and emotional wellbeing. We would prefer, as the Progressive Conservatives have suggested, that the whole question of incapacity and age be left with a standard that is similar to the common law, that is, that would allow a physician to make a determination if an individual understands the nature, purposes and consequences of treatment.
Turning to more general comments, we note that in introducing the bills in the Legislature the Attorney General stated that linking all of these complementary legislative reforms are the themes of liberty, empowerment, self-determination and the right to make choices. As a feminist organization, the National Association of Women and the Law is dedicated to the empowerment of women, the right of women to self-determination and autonomy and the right to make choices. We thus support the avowed goal of the legislation, respect for autonomy.
We are, however, deeply concerned by some of the provisions of these statutes. At a time when women's health care needs are not being met, amid increasing demands for a variety of government services to address issues concerning violence against women, women in poverty, immigrant women and others, we believe that the creation of such a costly, complicated and administratively complex system may be an excessive response.
Another concern relates to the fact that it is primarily women who are care givers for many of the individuals who may become subject to the system. It is most often women who make decisions and care for elderly relatives, vulnerable children and spouses. For this reason, we have drawn your attention in the brief to some of the cumbersome and complex provisions of Bill 108 which we feel will create a very difficult system for women who are caught up in it.
We are also concerned with some of the provisions of Bill 109. While the rights of vulnerable persons may be subject to abuse, and we acknowledge that, we are concerned with the assumptions which seem to underlie both the advocacy and the consent systems. These systems seem to presume that family members and health care providers cannot be trusted to make decisions or to assist in decisions for vulnerable persons. We are not necessarily persuaded that this is the case.
A further concern related to that which I just mentioned is the role of advocates within the system, and the qualifications. We are concerned that in providing strangers with such a crucial role, we run the risk of replacing one relationship of dependency -- dependency on the family, dependency on the health care professions -- with another. This new dependency relationship is then institutionalized.
Existing social institutions and the role of the caring professions are being displaced, and there is no guarantee, nor any experience, with the adequacy of the services which will be provided. We must always remember that the state is not necessarily benevolent; nor will representatives of vulnerable persons always act in the best interests of the patient. We draw your attention to a particular conflict, for example, a Catholic advocate called in to consult with respect to an abortion decision. We are concerned that these conflicts will not necessarily be appropriately resolved and, given the breadth of the system, it will be very difficult to determine where the fracture points might come.
As you know, there has been an intense discussion within the various communities affected by this bill: communities of women, communities of health care providers, health care consumers, lesbian and gay organizations, physically and mentally disabled communities. There are many strands of criticism. For many, the system appears to be one which will finally put into effect adequate state administrative and legislative protection for vulnerable persons. For others, the system appears to be an unjustifiable intrusion into the structure of the family, the health professions and existing health care institutions.
Nearly all are concerned with the cost to the health care system at a time of diminishing resources and increasing demands for social and economic programs. Given the depth of these concerns and the massive changes contemplated by these bills, we suggest that a pilot or demonstration project might be the best way in which to determine, for all involved, whether or not this is an appropriate system.
We draw support for this recommendation from the Inquiry on Mental Competency: Final Report, the Weisstub committee, which recommended that pilot studies be supported to identify the most effective and efficient method for implementing recommendations. The committee recommended that pilot studies be conducted in a variety of settings such as psychiatric and general hospitals, geriatric and children's facilities and community and health centres. They noted that when evaluating models for the implementation of recommendations, it is necessary to consider the relationship between capacity and support structures, both institutional and non-institutional, in the community. That is a particular concern here because I know many of the presenters have emphasized that they feel existing institutional and non-institutional support structures are being displaced, and we do not know what will be replacing this.
The implementation of a pilot study could be effected in a manner similar to that which was accomplished with the Intervenor Funding Project Act, which simply had a provision in there stating that the purpose of the act is to provide for the establishment and conduct of a pilot project. Indeed that has been carried out. The case management system, which affects the conduct of civil cases, is another example of where effective pilot studies were used. Legislation was subsequently changed and the system has generally worked much better.
Given the extreme depth of concern, this will be the best method by which to determine whether or not the worst fears of the critics of this system are borne out, whether the administrative costs are so prohibitive and the degree of intrusiveness into the functioning of health care institutions and other social institutions are so deleterious that the systems must be revamped. Conversely, the degree to which individual self-determination and autonomy is better respected, assisted and supported under this new system could be assessed and critics satisfied.
We thank you very much. We would be happy to entertain any questions you might have.
Mr Poirier: I feel very comfortable with your presentation, though I am not a Tory, although I am dressed in blue like heck today, and so are you. A pilot project is fine in principle, and I can understand where you are coming from and what you want to do. I do not know how much you have followed presentations that have been made before us similar to yours, but you are not alone, believe me, especially with the aspect of age. A lot of the health care practitioners who have come forward think the theory is okay but the practical application is completely out to lunch.
I am a strong adept of pilot projects in principle, but with such a loose cannon, even as a pilot project, it would seem that we would be wasting a lot of people's time. I think there is a lot of major surgery to be done in the bills before we would even want to consider a pilot project, which would be a good idea. How do you feel about this? Do you honestly think the bills are ready to go for pilot projects right now? If I were a doctor or a nurse and my hospital had been chosen as a pilot project, I would really be having a -- I do not know what.
1030
Ms Kristjanson: We are aware. We have not done a detailed section-by-section analysis. We certainly have read the extensive criticisms which have been made. Many of those are legal drafting concerns, many others go to the very heart of what the government is attempting to do. The reason we have suggested a pilot project is that it is our understanding the government is intent on enacting this system. We are also very sensitive, as lawyers who work doing health and constitutional litigation, to the concerns of health care professionals.
Mr Poirier: Of course.
Ms Kristjanson: Therefore, we suggest that if the government is indeed intent on establishing the consent in advocacy systems, the goals of which we applaud but the details of which we are unsure, it should best be done on a limited scale because of the potential to completely disrupt the health care system and drain away necessary dollars.
Ms Stoltz: I think we are comfortable with the legislation going forward as it stands now on a pilot project basis.
Mr Poirier: You are sure about that?
Ms Stoltz: Yes.
Mr Poirier: It surprises me actually that you come out with that because health care practitioners, in the practical application, just do not think, even though they support the principle -- I would not want my hospital to be chosen for a pilot project right now the way it is written.
Ms Stoltz: Right now you have a proposed system to work with and it all fits together very nicely. I think what you have to do is to put it in practise to see whether the problems do crop up the way the health care providers say they will. I think it is something they can work with and should be permitted to provide some impact on once they have practical experience with it.
Mr Poirier: Unfortunately if some individuals end up being the victims of the screwy things in the pilot project, and if one of those victims happens to die and is close to you, you might want to come forward after and say, "There is a hell of a cost that can be added to a pilot project when there are so many things that can go wrong." If one of the persons close to you is the victim and dies because of something wrong in the pilot project, I think it would add a very different coloration to what you just said. You may want to think about that one.
Mr Sterling: Our party has tried to work as constructively as we can with these bills because we realize that the issues here are not without merit. In other words, there are vulnerable people in this province and there is a problem in terms of consent issues that exists in the common law and statute law we presently have. We would like to work towards a solution, so we do not dismiss your pilot project idea out of hand and think it probably has some merit.
As people who advocate for a select group in society, are you -- my concern with the Advocacy Commission, and it has been expressed in this room on a number of occasions, is that when you put advocates out there for a group of people and you have very little framework around which they are operating, there are a number of concerns you have: number one, what motivates the system? Is it the individual, the vulnerable adult, or is it the partisan commission that is being set up under this legislation? The advocacy groups that have come in front of this committee have told us they are going to be partisan.
Is the advocate or the Advocacy Commission going to act for general goals, or are they going to act for the good of the vulnerable adult in this specific instance? You strike here as well a problem I see in terms of the individual advocate who might believe very strongly in a moral sense that he or she should stress one point or another because of his own moral or religious or social goals.
We are going through this in terms of the legal aid system in our province at the present time. There is sort of a veiled threat that there is going to be a public defender system. I have very great concerns about a public defender system, because then you start to get a whole bunch of other things that are there that are driving the system etc. Do you think an Advocacy Commission, which is going to be starkly partisan, without guidelines, with tremendous power and seemingly unlimited financial resources, because I do not think any government could resist the commission in terms of providing it with substantial dollars, is the right way to go?
Ms Stoltz: We share with you your concern about what is motivating the system, and I think that is what Ms Kristjanson was trying to get at when she talked about the problem of substituting one relationship of dependence for another. What is motivating the creation of this system, it appears to me, is the recognition that there are vulnerable adults in our society who are not properly cared for in the health care context. The question is, what is the appropriate thing to do here? It seems to me that what has been left out is the whole question of education of health care practitioners to be more sensitive to the needs of the people who are within their care.
I think it has to be said that while this is a system that addresses one relationship in which there is clearly a power imbalance in that the health care provider has more power and knowledge, generally speaking, than the person who is under his care, in substituting this person for an advocate you again have a power imbalance, and there are problems in personal relationships that you simply cannot control.
One of the things we are quite concerned about is something you hit on, and that is the possibility that you may have advocates who are motivated by strongly held personal and religious beliefs who will allow those to intrude on their function, which I understand to be simply helping vulnerable persons advocate their needs and their wishes. So yes, it is an area of concern to us.
Mr Sterling: We have heard --
The Chair: Thank you, Mr Sterling.
Mr Sterling: Could I just have one supplementary?
The Chair: No. Thank you, Mr Sterling. Mr Winninger.
Mr Winninger: Unlike Mr Poirier, who seems to feel we are out to lunch, you have looked at the menu, and overall --
Mr Poirier: Respectfully.
Mr Winninger: Overall you seem to be happy with the direction we are moving in. There are some constructive suggestions you have made for changes. Mr Poirier, just because he does not like the menu, says we are out to lunch.
Mr Poirier: You do not have a good chef.
Mr Winninger: I would draw your attention to a couple of the comments you make in regard to Bill 108, in particular on page 6 where you suggest that our requirements for powers of attorney for personal care might be too rigorous, and you list some of the requirements, having two witnesses, validation and this sort of thing.
As practising lawyers, I am sure you are aware that we have safeguards when it comes to last wills and testaments, and surely there should be the same kind of safeguards in place for personal care that there are after you die. It would seem to me that the kinds of requirements we have included in the legislation would be the kinds of minimal requirements one would expect to be there if one is to rely on an instrument that is going to create such far-reaching powers. It would even extend, as you seem to indicate, to the right of a woman to make decisions over the future of a foetus. Perhaps you could comment on that.
Ms Kristjanson: Certainly. I think our concern relates to the fact that this system is institutionalizing and overlegalizing almost all relationships between individuals once they enter the health care system. I agree with you that there are necessary legal requirements and formalities when executing a will, for example, because we want to be absolutely sure that something is correctly followed. I think our concern is because the resort to substitute decision-makers will now be much more prevalent in the system. It will be a tremendous work generator for Ms Stoltz and myself, because it appears to us that people will be running off to lawyers at the drop of a hat whenever a call for care is made, and we think that is an overformalization, an overlegalization, of many issues.
I think that when we look at some of the provisions, in some contexts they are necessary, but we fear that the system is overinclusive. It extends into too many situations, and in some of those situations we believe that both for individuals who will be making decisions and for the health care providers who are trying to find someone who has that authority, this system is simply too complex. In some situations these safeguards are necessary; in others it is simply an overly complex and overly legalistic response to a problem. That is where that comes from.
1040
Mr Winninger: I guess you agree it depends on the kind of case.
Ms Kristjanson: Yes, we do, but we think, again, the legislation is not carefully tailored enough to distinguish between various kinds.
Mr Winninger: I see the Chair shaking his head.
The Chair: Thank you, Mr Winninger.
Mr Winninger: But I have just one quick point, and I think it is an important one. You suggest that there be a pilot study for all four pieces of legislation, and I would suggest to you that a pilot study would not make a lot of sense in terms of Bills 108 and 109.
Ms Kristjanson: I disagree completely on that.
Mr Winninger: Why would you want a pilot study on substitute decision-making in the sense of --
The Chair: Thank you, Mr Winninger.
Ms Kristjanson: The substitute decision-making may be slightly different. The problem is that for most health care practitioners it is Bill 109 which is causing the greatest concern. You obviously have to have a pilot study of Bill 109 to see how it will function in a variety of institutional settings.
The Chair: Ms Stoltz, Ms Kristjanson, on behalf of the committee I would like to thank you for taking the time out this morning and coming and giving us your presentation.
BONNIE BURSTOW
The Chair: I would like to call forward our next presenter, Dr Bonnie Burstow.
Dr Burstow: I am Dr Bonnie Burstow. I was originally presenting solely on my own behalf, though at this point two groups have endorsed what I have said and asked me to speak on their behalf too, and those are Phoenix Rising and RAP, Resistance Against Psychiatry.
I am a supervisor of numerous therapists in the city. I am also somebody who used to be a full-time faculty member in the social work departments at Carleton University and the University of Manitoba. I am used to issues around care givers and also teaching around laws affecting care givers.
I think there are some problems with a number of the acts. The act I want to say least about is the Advocacy Act, because I see this as essentially a very good act. At the moment there is a petition being sent around the Ontario Public Service Employees Union suggesting that these advocates are not needed because public servants are already doing the advocacy. I would like to suggest that public servants are very often in an inherent conflict of interest with the people they are serving and that we very much need independent advocates.
Overall, one problem I have with the acts as a whole is that there are not clear avenues for enforcement. I would like to suggest in terms of the $5,000, which is put out in two of the acts, that $5,000 would not be much of an obstacle for a lot of people against violating conditions in an act. I would really like that reconsidered. Something like a third of their salary might be a much more sizeable and meaningful obstacle. Something that specifies that no other body would reimburse them for this also might be helpful.
My main concern is with the Consent to Treatment Act, but I want to start with the Substitute Decisions Act. Section 56 allows the court to make an order for full guardianship of the person and then specifies in points (a) to (c) what a guardian cannot consent to against the person's wishes, and these are admitting the person to a mental institution against his will, change in custody relationships, or electroshock for the purpose of aversion conditioning. I would like to add a (d) and an (e). Point (d) would be consent to electroconvulsive therapy. We are looking at an inherently damaging form of "treatment" and I do not feel a guardian should be able to force this upon someone against his consent, and (e) would add consent to neuroleptics and anti-depressants against the person's wishes. Again, we are talking about drugs that can cause serious neurological problems, including tardive dyskinesia, which is irreversible, and a guardian should not have the power to impose these on a vulnerable person.
Section 63 itemizes things a guardian should not do, and in the process of doing that it looks at the fact that guardians may be able to restrain a person if he or she is causing bodily harm to another or himself. What I am going to say may be very difficult for people to follow here. I have absolutely no problem with a guardian being able to restrain a vulnerable person who is causing harm to someone else. I think we need to seriously modify the whole question of restraint when it comes to harming themselves, and let me explain why.
As a therapist in the city, I have worked and specialized for many years with women who self-mutilate themselves. I can tell you that a very high percentage of incest survivors regularly and routinely self-mutilate themselves and that this is a way of coping and getting by in the world. I do not suddenly want to see these people restrained. I have seen what happens when people try to stop them. Suddenly actions that are done in awareness become out of awareness and all sorts of things which are not desirable happen. I think we have to look very carefully at rewording this section.
Going on to the consent to treatment bill, section 5 reads, "Consent to treatment may be express or implied." I would like to suggest that this is extremely open-ended and that it invites abuse. I would like to have it read instead, "Except where a person is incapable of expression, only expressed consent is acceptable," and "Except where a person is incapable of writing, expressed consent must be in writing." That way we have more reason to believe real consent is happening and we are not simply having to take someone's word that when no one else was around, this person gave a nod.
Section 6 reads:
"(2) A person may be capable with respect to some treatments and incapable with respect to others.
"(3) A person may be incapable with respect to a treatment at one time and capable at another."
I have no doubt this is true. However, I think we again have a statement here that could be used in ways that are quite abusive. We all know that it is very easy for a care giver to think the person is capable of consent to treatment when he gives consent, but incapable and not understanding it when he does not give consent. I think we need a further statement that, "If the treatment is a controversial one, such as psychiatric treatments are" -- which is one example -- "agreement or disagreement with the care giver's understanding of the treatment and need for it may in no way enter into any decision on the person's capability to decide on treatment." Otherwise, we open the door for very subjective decisions around capacity.
Section 13 reads, "Wishes with respect to treatment that a person expresses, orally or in writing, while capable, override earlier instructions with respect to treatment that are contained in a power of attorney."
Again, the person has gone to great effort to put something in a legal form and power of attorney. I do not want to see a situation -- and this certainly opens the door to a situation -- that the person says, "Do you want this treatment?" and the person kind of semi-nods and it says, "Oh, well, this person is now capable, and while capable they agreed to this treatment." Again, we would want something in writing so we knew it was being done in a deliberate way and this is really indeed what the person meant. I do not think we should be creating very carefully worded legal situations and then allow them to be brushed away this easily.
Section 29 deals with the possibility of a substitute decision-maker applying to the board for permission to give consent to a treatment despite instructions when capable to refuse such treatments. It reads,
"The board may give the applicant permission to consent to the treatment, despite the instructions or wishes, if it is satisfied that the incapable person would probably, if capable, give consent because the likely result of the treatment is significantly better than would have been the result of treatment that was available in comparable circumstances at the time the power of attorney was given or the wishes were expressed."
There are many situations where I can see the value of this concern. Somebody has AIDS and when he is competent he says, "I don't want this treatment," because he has all sorts of awful side-effects, his hair falls out etc. He becomes incompetent with respect to treatment and the drugs are seriously improved. They no longer have these complications, his hair does not fall out, he does not vomit every day. The substitute decision-maker really needs to be able to shift.
1050
We are in a very different situation with other categories; specifically, we are in a different situation when it comes to psychiatric drugs. We all know that almost every day psychiatrists are claiming, "We now have a great new improvement on this drug." We all know this is claimed. "These terrible side-effects that existed with the past drug do not exist now. These drugs are enormously good and are improved." These are common claims and we see them year in and year out.
For somebody who has made it clear that he or she does not want anti-depressants, does not want a souped-up anti-depressant that is now being claimed as "way better," I am concerned that with this act it would be very easy to give them that.
I am asking for a change here. I am asking for the addition of the following sentence: "The board will not give such consent in the absence of indisputable proof that the incapable person suffers from a genuine physical disease" -- and please note, there are no such proofs in psychiatric diseases -- "and indisputable proof that the treatment in question addresses the physical disease." Again, this would be a way of leaving out the psychiatric treatments, which are controversial at best and where there is certainly no indisputable proof that they are addressing a bona fide physical illness in any way.
I would just like to make one further comment with respect to the previous submission in terms of the Advocacy Act. One of the speakers asked that not just the advocate but the incapable person, the vulnerable person, be able to examine and copy all records, subject to the provisions of the Mental Health Act. I would agree with that, leaving out the words, "subject to the provisions of the Mental Health Act." It is very important for people to know what is being written about them and on what grounds people are doing what, and it is not easy to get such information with the present Mental Health Act.
I have had clients who had to go through six lawyers before one of them was finally able to get the actual stuff. It is not easy. It would be, I think, a clear improvement if the advocate had the right and even the responsibility to provide the person with such information if the person wished it. The need for consent of the doctor is somewhat a joke, I think, seeing as the doctor is often the person who the vulnerable person is in conflict with. That is all I would like to say. I am open to questions.
The Chair: Thank you. We have time for about six minutes for each caucus. Mrs Sullivan.
Mrs Sullivan: Dr Burstow, I am very interested in your presentation and I wanted particularly to concentrate my questioning on the last point you made with respect to section 29 of Bill 109, which would enable a substitute decision-maker to apply for a change in the instructions. Do you ever see circumstances in the care of mentally incapable people where indeed there is proof of changed circumstances as a result of medical or other therapeutic treatment?
Dr Burstow: Certainly. A mentally incapable person could develop diabetes, which he did not have before, and I am saying that the change would in no way affect that.
Mrs Sullivan: Okay. Can I just rephrase that?
Dr Burstow: Yes.
Mrs Sullivan: Particularly in relationship to the mental condition.
Dr Burstow: The mental condition can change. We are still in a situation where there is no substantial proof that there is any physical disease present, and to be able to impose treatments like this against the patient's expressed wishes gives me great concern. Again, it opens up loopholes.
I have talked to many people about these acts, people who are in jeopardy, and they are very, very concerned. They are going to do their very best to stop having some treatment, and this section is going to make it possible for their wishes to be overridden. I do not want to see that happen. We are looking in terms of psychiatry at a whole area where people have historically been given things against their wishes, and I do not think we should pretend otherwise. It is very different than other areas of the health system where adversarial relationships are far less common. This is an area where adversarial relationships are very common and every effort is quite often taken to get around what the person actually wants.
Mrs Sullivan: For example, if there were changes in the treatment of Alzheimer's patients which contributed to substantial improvement in cognitive ability, would not your proposal for the addition that would limit consent to physical ends --
Dr Burstow: Can I answer that, because I understand your concern and, no, it would not affect it in any way. Alzheimer's is a physical condition that is physically verifiable. In fact, it would allow people to say, "On this physical condition which is physically verifiable," which Alzheimer's is. It is a brain disease. The brain is physical. One could go ahead and show that there was greatly improved treatment and there was reason to believe that this person would take it. I am talking about the mental illnesses which are not physical diseases but metaphors. With real physical diseases like Alzheimer's, there is no question that this is a physical disease and I am not trying to protect people against that kind of treatment.
Mrs Sullivan: Would you consider schizophrenia a physical disease?
Dr Burstow: I most certainly would not. Nor is there any scientific evidence to substantiate that it is a physical disease. In fact, the branch of medicine that deals with what is or is not a physical disease has never listed schizophrenia or any of these mental illnesses because the scientific proof is not there.
Mr Sterling: We are told that schizophrenic patients occupy approximately 50% of the hospital beds in our psychiatric institutions. We are told that, with at least some of them, part of the nature of the illness is to look at any treatment in a paranoid way. Given the nature of that illness, how do you deal with it? Are you suggesting therefore that people who, according to -- and I believe as a legislator I have to go with the general consensus of the medical profession. How do you treat them?
Dr Burstow: First, let me say that while there are overriding opinions in the medical profession, there is not a consensus. A number of medical people have spoken out saying this is not the case. You have a consensus when there is no one who strongly objects. You have people throughout the history of psychiatry who have said this is not the case.
Mr Sterling: In politics we never get a consensus.
Dr Burstow: You said that as a legislator you have to operate in terms of general consensus. I am saying there is no such general consensus so, no, you do not have to. People who are diagnosed schizophrenic are generally people whose trust level is low, and often there is damned good reason for their trust level to be low. I think it pathologizes the whole issue of trust by saying this is in the nature of an illness. It is not in the nature of measles, it is not in the nature of any real illness I know to be distrustful.
If people are distrustful, they may or may not have something to distrust when it comes to the treatment in question. But to begin with the presumption that there is no reason and this happens with an illness, I think, is to buy into something that leaves vulnerable people utterly unprotected.
1100
Mr Sterling: How do you treat them?
Dr Burstow: For one thing, I do not treat people; I work with people. If people work with people in ways that are trustworthy -- and I have worked with many, many people who have been diagnosed by the medical establishment as schizophrenic -- trust shifts; a strange thing. I do not think it would do that if it were part of a physical illness and yet it does, which suggests to me (a) that is not part of a physical illness, and (b) that it is not impossible to work with people on these issues. One has to work in a way that is respectful and that recognizes people's rights. You do that and people start to trust. I have not had a major problem of trust with people diagnosed as schizophrenic though strangely enough their psychiatrists have, their doctors have, and so forth.
Mr Winninger: You raise a couple of interesting points I just need clarification on. You would add a couple of subparagraphs to section 56 as you have stated on page 1. You mentioned "neuroleptics or anti-depressants" and then you mention "monitoring devices or restrain the person physically or by means of drugs." Just dealing with your suggested subparagraph (e) with neuroleptics or anti-depressants, "highly damaging drugs," section 56 starts off with a little preamble which says, as you know, "unless the order expressly provides," so these things are permissible if the guardianship order expressly provides so. I assume that by adding these two subparagraphs you still acknowledge that a court may order that this kind of treatment is appropriate in an individual case.
Dr Burstow: I acknowledge that in fact that is the case; the court can. I certainly do not agree that a court should and I would agree that would have implications for the rest of the act. I think a court ordering any kind of treatment as medical, which has not been proven to be medical, is a problem in the first place. If you add to the fact that there is clear documentation of irreversible diseases, which these treatments cause, I think we are into a very difficult area here.
Mr Winninger: Another thing that concerns me is that at the bottom of page 1 you describe some of your clients, women, some survivors of incest who self-mutilate and you say it would be inappropriate to confine, monitor or restrain self-mutilation.
Interjection.
Mr Winninger: We have had many psychiatric survivors come forward who have suggested that unless a person is a danger to himself or herself or others you should not be able to take steps to commit and restrain. Where would a health care practitioner or a guardian, for that matter, draw the line if someone is self-mutilating, because that could obviously be life-threatening?
Dr Burstow: I have tried to avoid a very difficult area here, and you have taken me right into it so I cannot avoid it any more. First, let me make a distinction between "self-mutilating" and "suicidal." I have worked with women who have self-mutilated for many, many years, and you would be surprised what percentage of women, because men are trying to take their hostility out on others, are trying to take it out on themselves. With all the women I have worked with, with all the people I have supervised in this area who work with self-mutilating women, the self-mutilation has never been a way of killing themselves. It has been a way of coping, a way of getting through the day, a way of numbing themselves to pain, a way of distracting themselves from child abuse memories etc. That is not what it is about, and so I think we scare ourselves when we say "This person is really going to die from this." They do not die from this so I think these things have to be separated out.
Beyond that, I have a further belief which would be very controversial and I did not want to get into it for that reason. I think there are times when people do kill themselves, and as a state we have pathologized that. We have pathologized the issue of wanting to kill themselves and yet we know that, for century after century, philosophers have put this forth as the basic human question that we all ask ourselves: Do I want to go on living or do I not? It is my strong sense that that decision has to be in the hands of the people and not of other people. When I say that, I am sure everyone's hackles go up and they say, "That's going to result in more deaths." I would like to suggest that if we did not physically stop people -- that is different from offering help; I think we are definitely obliged to offer all sorts of help -- from killing themselves and people did not know we were going to do that, the death rate would go down, would not go up.
I have also been specializing in the area of suicidal clients for 15 years. When people told me they were going to kill themselves, not once did I try to physically stop them, and I have not lost a single client. With psychiatrists who drug them and stop them and confine them for those reasons, I doubt whether any of them have that same record.
Mr Winninger: One last question, if there is time. You suggested that you approve of the amendment for access to health care records, which may be the subject of separate legislation, but you have suggested that the phrase "subject to the Mental Health Act" be deleted. There are many cases where information in medical charts, particularly in psychiatric situations, contains anecdotal or descriptive evidence of behaviour that comes from family members, friends, this sort of thing. I think one of the motivating reasons for having that caution in the Mental Health Act, so that there is a review board mechanism for that, is danger, sometimes, to other people if all that information were disclosed. So I would ask you whether you agree that there have to be some reasonable limits on full disclosure for mental patients or possibly other patients.
Dr Burstow: No, I do not, so let me try to explain why I do not. I have never been locked up in a psychiatric facility, but I will tell you, if friends and relatives could say whatever they want about me and this would be written in charts and everyone in the hospital would have access to these charts and I would not know what they would say, you are damned right I would be paranoid; not because I would have a disorder, but because this is a paranoid-making situation. If there are things that people have said that for everyone's protection you do not want known, then do not have them written in the chart.
I think it is a real paranoid-making situation to have all this information in the chart with a whole bunch of people having access to it and acting in terms of it, whether it is right or wrong, because I assure you, relatives say things from their own point of view, and sometimes that point of view coincides with the patient's and sometimes it does not, and sometimes it is accurate and sometimes it is not. People need access to that kind of information. Yes, there can be times when you think it is dangerous; then do not put it in the records. Do not have everyone else being able to look at it and this vulnerable person the one person kept in the dark.
The Chair: Dr Burstow, on behalf of the committee, I would like to thank you for taking time out this morning and coming and giving us your presentation.
ONTARIO COLLEGE OF FAMILY PHYSICIANS
The Chair: I would like to call forward our next presenter, from the Ontario College of Family Physicians. Good morning. Just a reminder that you will be allowed a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you are comfortable, could you please identify yourself for the record and then proceed.
Dr Miller: My name is George Miller. I am the president of the Ontario College of Family Physicians. I am accompanied today by Ms Terri Toffen, who is our executive officer. On behalf of the Ontario College of Family Physicians, I would like to thank the standing committee on administration of justice for allowing us time to comment on the bills relating to consent.
The Ontario College of Family Physicians is a provincial voluntary organization of family physicians dedicated to the maintenance of high standards of medical education and care in family practice. We represent educational, economic, political and social interests of family physicians as well as the interests of our patients, the health care consumers of the province. We have a provincial membership of 4,700 family physicians.
Our comments here are almost exclusively related to Bill 109. We agree with the establishment of the age of consent at 16 years. Under subsection 8(1), patients aged under 16 years are presumed incapable of consent, but if a health care worker feels that a patient is able to understand the issues involved, the practitioner would be able to declare him or her competent and provide the service. We feel that this is appropriate, since it will give family physicians the latitude to treat minor problems in our offices while allowing hospitals the authority to develop guidelines for the provision of more complex services which would more appropriately require the consent of parents or guardians.
Family physicians frequently see children who have come to the office on their own or in the care of a babysitter or an older sibling. Most of these visits are for minor health ailments. Family physicians must have a mechanism to examine and to treat under such circumstances. This bill gives them such authority, assuming they can satisfy themselves that the child is competent to understand the nature of the illness and its proposed management. It makes sense in such situations to tie consent to the ability of young patients to understand, rather than to their age.
1110
However, in situations where the reason for the visit is complex or where treatment is complicated, it becomes more difficult for family physicians to satisfy themselves that the younger patient has a full understanding of the issues involved. Indeed, complex issues of medical management often tax the understanding of a mature adult. The presumption of incompetence in patients under age 16 allows physicians the latitude to ask the young patient to seek the consent of a parent or guardian if the physician does not feel that the patient has a full understanding of the proposed health care service. Family physicians would not have this option if the age of consent was lowered or if there was no age of consent.
We are glad, therefore, that the Weisstub recommendation of 14 was not followed by the drafters of this legislation. Our members believe that patients in the age group 14 to 16 have too little experience of life and are far too vulnerable to peer and other pressures to be assumed competent to consent to all health care services. Although family physicians are uncomfortable with the concept of agism, we feel that a compromise has to be made on this issue, and we feel that this bill proposes an acceptable compromise.
Subsection 10(7) creates an unintended anomaly. Under this subsection, a child of any age who refused treatment would go through the whole process of advisement, written notice of incapability and appointment of an advocate. This would obviously be inappropriate for the uncooperative four-year-old who does not want his booster shot or the six-year-old who does not want his sutures removed, both of which are very common scenarios in family medicine.
Under section 24 we are pleased to see protection from liability for physicians who treat in an emergency on the basis of a consent which they believe to be valid or who cease treatment on the basis of a refusal of consent which they feel to be valid.
We agree in principle with the concept of advance directives. However, if physicians are bound by the law to follow these directives, it is essential that they be protected from civil suit in the performance of these legal responsibilities. It would not be fair to subject physicians to double jeopardy, where they could be sued by the patient or relatives no matter what decision was made. This immunity should also extend, however, to disciplinary actions instituted by the College of Physicians and Surgeons of Ontario. We would like to see an amendment to that effect. We note that this immunity is also extended to emergency decisions made in good faith by the substitute decision-maker, and we agree with this.
Although we agree with the general direction of the proposed legislation, we do have some concerns with the act. I would like to mention at this hearing two of our concerns. Our first concern relates to patients who harm themselves through self-destructive acts. Bill 109 gives authority to advance directives by patients, and physicians are bound by law to follow them. As we have already noted, we accept this and agree with the concept. There are some problems, however, when this is applied to self-destructive acts. Family physicians will be placed in a difficult situation if patients arrive in the emergency ward having taken an overdose of sleeping tablets and then refuse treatment. Although the patient will argue that the refusal of treatment is valid under section 23 of Bill 109, the doctor might reasonably argue that the patient's mental competence is clouded by a temporary and treatable state of depression and that the refusal of consent is not therefore valid. Since suicidal gestures are frequently the result of transient aberrations in the mental health of individuals, we feel that the law must make an exception in the case of self-destructive actions and disallow advance directives refusing lifesaving measures. A clause should be inserted into Bill 109 to this effect.
This does, of course, bring up larger societal issues, such as the competent individual's right to refuse water, food and the necessities of life for political and other reasons. Society may well believe that individuals have the right to initiate such self-destructive actions. However, the decision is of such magnitude and the consequences so final that we believe the burden in such cases should be on the individual to prove competence, preferably through a formal competency hearing, rather than for the physician to prove the opposite. This issue is, of course, extremely complex and needs much public debate. However, until it is resolved, we urge that advance directives not be binding on physicians in emergency situations when associated with self-destructive acts.
Also on the issue of advance directives, we would like to record our concerns about advance directives from minors and residents in an institution refusing consent for emergency lifesaving procedures. Members of these groups often have great difficulty establishing their rights and need the protection of society from those who might counsel them unwisely. Again, we suggest that the burden of proof be on the individual to formally establish competence rather than on the physician to prove otherwise. This could be dealt with through an amendment to the Advocacy Act, Bill 74.
Our second concern with the proposed legislation is the plight of the mentally ill, who have once again fallen through the cracks in legislation and are absent from these bills. In our brief to the Weisstub Inquiry on Mental Competency, we voiced our concern about individuals who suffer from a recognized psychiatric illness and who have no insight into their own condition ending up on the streets or in jail because the present system allows them the questionable right to remain mentally ill.
It is variously estimated that between one third and one half of the homeless in major metropolitan cities suffer from a serious untreated mental disorder. Many of these individuals, contrary to popular belief, do have homes and do have relatives who worry about them. Indeed, some of the most heart-rending submissions to the Weisstub inquiry came from relatives of individuals in this group. Yet these victims of mental illness wander the streets of our major cities, listening to the incessant siren-song of the voices in their own private world, a siren-song which dashes them on the rocks of our indifferent society.
Although treatment is available, they do not receive it because we have given the right to refuse treatment even though their mental illness by its very nature may prevent them from recognizing that they are ill. The terrible paradox in our society is that the more mentally ill you are, the less likely it is that you will receive treatment. We believe that the cause of this paradox lies in our outdated attitudes to the process of committal of patients. The system of involuntary committal, as it presently stands, is not based upon an individual's need for treatment; it is based upon a mechanism of detention aimed at incarcerating individuals who are an immediate danger to themselves or to others until the threat has passed.
Once the immediate threat of danger has passed, these individuals are free to decline treatment even though they may have a serious untreated mental illness and no recognition that they are ill. They are discharged to a community which has few resources and no authority to treat. The revolving door has just taken another turn.
Professor Weisstub himself noted that psychiatrists saw themselves increasingly as jailers rather than healers. Submission after submission to his inquiry detailed this revolving door syndrome of psychiatric institutions. It has also been commented upon by many coroners' juries investigating the street deaths of such individuals.
1120
There are two problems with the present, outdated concept of involuntary committal. First, the concept is global. In other words, patients effectively do not have the right to make any decisions while under such a certificate even though they may be competent in issues unrelated to their own illness. Second, it requires incarceration in an institution. This leads to the process being perceived as punitive, with all the emotional turmoil this entails, rather than being seen as a healing process.
The Ontario College of Family Physicians has gone on record as advocating a system of outpatient certification, whereby involuntary patients would be free to make all their life choices except for decisions related to their own treatment, which would be made on their behalf by substitute decision-makers. This would ensure that patients who have no insight into their own illness would be able to get the care they need on the authority of their substitute decision-maker and certification would be linked once again to the need for treatment rather than the need for incarceration.
Professor Weisstub, in his report on mental competency, recognized that the issue of involuntary committal needs further study, and we would urge that this be given highest priority. The Ontario College of Family Physicians would be more than willing to work with government towards formulating a sensitive and non-punitive approach to involuntary treatment. Our present task, however, is to ensure that the legislation we are discussing today does not shut out the mentally ill. We propose that the legislation be amended to leave the door open to anticipated changes in the committal process.
In subsection 19(2) of Bill 109, a substitute decision-maker has the authority to admit a patient involuntarily to a psychiatric facility. This can only be done, however, if a court order has been obtained as described in Bill 108, section 56. Court orders are not only time-consuming and difficult to obtain, but the involvement of the court reinforces the punitive concept of committal impeding the healing process and degrading the individual. The mentally ill are not criminals.
This section should be amended to give authority to the substitute decision-maker to order treatment of an involuntary patient if the patient is under the certificate of committal. Although under our present system this will effectively mean involuntary admission to an institution, such an amendment to Bill 108, section 56, would leave the door open to anticipated changes in the committal process. This in turn would lay the groundwork for the development of a sensitive system of involuntary committal based on treatment needs instead of the need for incarceration, based on community management instead of institutional treatment and based on specific determinants of competence instead of global determinants of incompetence.
The Ontario College of Family Physicians shares the concern of many other groups, but the system of advocacy outlined under sections 10 and 11 of Bill 109 is completely unworkable. It is just not practical to withdraw authority for treatment from each and every incapable patient until he or she has been advised by an advocate. However, your committee has heard this loudly and clearly from many other groups.
Our priority today has been to focus on aspects of Bill 109 which we feel have not been adequately heard during the deliberations of your committee. The main message we would like to promote today is that the mentally ill cannot obtain the treatment they need or desire with this bill as it stands. A caring society should not abandon the mentally ill to the streets or to jails in the name of human rights. We have the opportunity in this legislation to open the door to a more appropriate and humane approach to mental illness. If the opportunity is lost, it will likely not appear again until the year 2000 or beyond.
Mr Chair, I realize it is late in the morning. I would like to compliment your committee members on their undivided attention. I would be happy to answer any questions you may have.
The Chair: Thank you. Each caucus has about five minutes for questions and comments.
Mr Poirier: Until your presentation, I would have bet a hefty amount of money that care givers would have been unanimous in throwing out that age 16 limit for consent for children. Every group, as far as I can recall -- I have been here almost 100% of the time -- has come out asking to remove that age 16. You come forward and you want to keep it. This is rather interesting. I respect your position on this, but it is a heck of a surprise, because you are the first group -- correct me if I am wrong -- of health care givers who wants to keep it. Can you help me understand why you would have such a different position than the other health care givers?
Dr Miller: Are you asking me whether the age of consent should be removed altogether and any person, no matter what age, should be assumed competent?
Mr Poirier: I am asking you if you can help me understand why your group would have such a different position than other health care providers who would like to have it completely thrown out.
Dr Miller: I think a lot of the groups you have heard from so far may have been associated with institutions. In family medicine we see a lot of young patients.
Mr Poirier: They also claim that.
Dr Miller: I think if you get down into the young age group such as eight or nine years old, it is very common for these individuals to refuse treatment because they are afraid, because they do not understand what the treatment is. Under such circumstances, we have to rely on the guardians or the parents to make the decision for them. A six-year-old who refused to have his stitches out, for example, would end up going around with stitches for ever. I really cannot visualize that.
The biggest problems, of course, are in relation to birth control advice and sexual advice. Children of 14 or 15 may well have the maturity to understand all the implications of birth control, for example; children of 11 or 12 may not. If they do understand the issues involved, they may not have the emotional maturity to understand fully the decision they are making. So I think once we get down into the lower age groups, our organization is very uncomfortable with the idea of removing the age of consent completely.
Mr Poirier: I am quoting from the other groups of doctors, nurses and other health care givers who have come forward. They are stating: "We feel perfectly protected or very comfortable with the current protection the common law gives us pertaining to something like that. Therefore, we do not feel we need that age 16 limit." How would you respond to that? I am trying to understand the black-and-white difference.
Dr Miller: At the moment, as far as I know, doctors really do not have any authority to treat under these circumstances, as I understand it. I do not understand common law too well but, as I understand it, there is nothing that actually gives us the authority or the right to treat people under 15 at the moment. I have no objection to a law that gives us authority to treat. I have problems with a law that takes away authority to treat.
Mr Poirier: I can understand that.
Dr Miller: Subsection 10(7), for example, takes away our authority to treat a child who refuses treatment even though he or she is under age. This is where I have the difficulty.
Mr J. Wilson: Thank you very much for your presentation. I think this is an important point as we wind up the hearings. Perhaps we could ask either the parliamentary assistant or counsel to clarify, in 30 words or less, the common-law standard right now with respect to treatment of children.
Mr Wessenger: The common-law situation is that the matter of capacity is not a question of age; it is a question of determining whether the child has the capacity to understand the consequences of the treatment. If the child has that understanding, then of course he would have the capacity to consent to the treatment. As a result, a child could be competent at age 12, or with respect to some treatment, such as the thing of stitching up a wound, maybe a nine-year-old might have capacity in those types of circumstances. On the other hand, you could have a situation where a 16- or 17-year-old might not understand a treatment decision, in which case a medical practitioner would determine that, if the person did not have capacity. So it is very flexible at the present time.
That is the way the common law is. There has been an amendment put forward by the Conservative Party with respect to deleting the reference to age, which would put it back to the common-law position.
I can understand your concern about subsection 10(7). Certainly it is not the intention that this would create a problem, and we are looking at clearing up that ambiguity.
1130
Mr J. Wilson: Thank you, Mr Wessenger. You have explained fully the intent of our amendment.
I do have a question, though, that pertains to page 9 of your brief. For instance, Dr Bonnie Burstow appeared just before you. Not to put words in her mouth, but presentations like hers or similar to hers have told the committee that unless there is a clear sign of physical illness -- for instance, she indicated she did not consider schizophrenia to have any physical signs, and therefore it was not an illness; that many types of mental illness are really subjective matters when it comes to diagnosing those and they are really in the eyes of how others view the so-called mentally ill person. I think it ties in with your outpatient certification proposal here. Have you had an opportunity to discuss this with a number of mental health organizations and, if so, what has their response been to this idea?
Dr Miller: The outpatient certification process first came up through coroners' inquest reports. It appeared in the recommendations of several coroners' juries. We took it up from there, and we have discussed this internally with our own organization. I do not have the response so far, say from the schizophrenic organizations. We have put this idea out to the Metropolitan Toronto Health Care Coalition. We do not have a response back yet from them.
Mr J. Wilson: I get the feeling the government itself tends to listen a great deal to groups that say: "Well, these things are subjective really. These people are not mentally ill, it is just the way you view them." I would think groups that are of that opinion would resent that a substitute decision-maker can make all choices except those choices pertaining to their treatment. I get the feeling from weeks of hearings now that a lot of people perceive there should not be any treatment, just counselling and good neighbourly relations for these people.
Dr Miller: There is a great deal of denial about mental illness in the community. A lot of this denial is from patients who have been through the process of being mentally ill. We are not suggesting that doctors make these decisions, but we do feel that under certain conditions where patients have no insight into their own illness -- and there are definite medical illnesses that have these characteristics -- these cannot be treated by psychotherapy. Attempts to treat schizophrenia by psychotherapy have been going on since the 1930s and 1940s and have been totally unsuccessful. Schizophrenics can be managed by agreeing with their delusions but schizophrenics cannot be cured by psychotherapy, as far as the medical information I have seen is concerned. What we are advocating is that because these patients with serious mental illness are not able to make these decisions themselves, that decisions be made by a substitute decision-maker.
There are many occasions where a doctor's advice is not taken. We expect there would be many times when we would explain the pros and cons of treatment to a substitute decision-maker and the substitute decision-maker may decide not to take our advice. But at least if that happens, someone is taking responsibility for that mentally ill patient. At the moment, once the mentally ill patient refuses treatment and leaves the doors of the hospital, absolutely no one has taken responsibility for that decision. That is why they fall through the cracks.
Mr J. Wilson: That is a very good point. Thank you.
Mr Wessenger: With respect to your brief, I would just like to make the comment that I can certainly understand the health practitioner having a protective attitude with respect to patients, but this legislation really also has to balance that with respect to the question of patients' rights. Certainly we have had a lot of evidence of misdiagnosis with respect to the area of psychiatry and treatment being given which has had very bad effects on psychiatric patients. I think maybe that has to be taken into account in this whole question of how we deal with consent to treatment.
The other point I would like to make is the matter with respect to commitment. This legislation does not deal with the commitment process; that is under the Mental Health Act. We are really dealing with consent to treatment. The effect of this legislation would be that even when a person is involuntarily committed, that would not take away from him the assessment of the question whether he had the capacity to consent to a particular treatment in spite of the fact that he was involuntarily committed.
Dr Miller: I think the door still has to be left open for changes in the committal process. At the moment the committal process is just one of incarceration. The law does not recognize the need for treatment in the committal process at all. It only recognizes the need for incarceration. As such, it is a terribly punitive attitude towards involuntary treatment. There are people who do not accept that the involuntary treatment is necessary under some circumstances. There are some people who deny mental illness completely and say it does not exist. But if you accept that under certain circumstances involuntary treatment is necessary, we have to work out a humane and non-punitive way to do that. Although I agree the legislation does not deal directly with the process of committal, it could leave the door open to changes in committal if we allow it to do that.
Mr Wessenger: The only comment I would like to make is in fact that this legislation does provide for involuntary treatment in the case where a person is determined to be incapable.
Dr Miller: From a court order, yes, which increases the punitive aspect --
Mr Wessenger: Not only from a court order. Once the person is determined to be incapable, then of course the substitute decision-maker can make that decision.
Dr Miller: If the patient agrees.
The Chair: On behalf of this committee I would like to thank you for taking the time out this morning to come and give us your presentation.
I have one announcement on scheduling for the committee. We will be doing the teleconferencing in room 151 promptly at 1:30. We ask that everybody be there strictly on time, because we have to be out by 2.
Mrs Sullivan: Mr Chairman, I want to indicate that I have a motion to present to the committee at whatever time the Chairman wishes to deal with it.
The Chair: Thank you.
1140
HUGH TAPPING
The Chair: I would like to call forward our next presenter, Hugh Tapping. Good morning. Just a reminder that you will be allowed a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you are comfortable, could you please identify yourself for the record and then proceed.
Mr Tapping: My name is Hugh Tapping. Almost 30 years ago I was involved in an industrial accident. Unfortunately, it was the mental health care industry. Like most industrial accidents, quite a few different things had to go the wrong way in just the right sequence of events. Unlike most industries, quality assurance and quality control are not something this field has paid very much attention to. Everyone seems to have very strongly held opinions, I am no exception to that.
I do not have a presentation in a brief for you today. I was writing for hours last night after I heard that I would be speaking today. After watching the news I took a look at what I had written and had to start all over again, so I doubt I shall be able to read my notes. I am not going to give a full brief. One of the reasons is that it is the last day. I suspect by now most of you have had enough.
You are legislators. You make the laws. I am not going to take you through all this clause by clause. I am neither a lawyer nor a legislator. However, now that it is your last day and you are going off to do the work behind closed doors, I do want to try and remind you that legislation does not equal social change. Legislation can help and legislation can hinder. As lawmakers you folks are stuck in the position of the carpenter who only has a hammer. No matter what the screw in his tool-box is, there is only one thing he can do with it. You really should use a screwdriver on screws, folks. That was an attempted joke.
I have sat through quite a few of the briefs and deputations to you. You have sat through all of them. Congratulations. Some two years ago now the federal government released a discussion paper for federal-provincial consultation called Striking a New Balance: A Blueprint for the Regulation of Ontario's Health Professions. That is what you people must do. You have heard much about a very polarized scene. Many people come here and give you a very black-and-white picture. Part of that, I think, is due to the very way the consultation with the public happens. Most of us do not do this sort of thing very much. This is kind of intimidating. You are used to it, but believe me, you are only used to sitting there. This hot seat where I am is different for everyone.
You must strike a balance according to what you have been told. I beg you please not to continue to just do party politics with this. Please remember this whole advocacy business got started with Father Sean O'Sullivan. He was as rock-ribbed a Diefenbaker Tory as you will ever find and the youngest member ever elected in Ottawa. It was the Liberals who appointed Father O'Sullivan and now it is the New Democrats who have inherited carrying on the work. I am concerned about some of the almost autopilot, automatic responses I have heard in the questioning in this committee. It is time to get over that, folks.
I would like to give a bit of a history lesson before we get into the questions and answers, because things are getting better. They do not get better because of legislation. Sometimes they seem to me to get better in spite of legislation.
This whole advocacy proposal is not just about the law; it is about social change. I do not really know how much influence a legislature can have on that. I think most people recognize that it reflects rather than leads society's values.
I have several books here. You have heard about this one: Madness in the Streets. You have been told to read it by at least two presenters. I agree that you should read this thing. I disagree completely with what is in this book. I thought they had me labelled as being paranoid. This is truly amazing stuff. It explains how the homelessness situation is the product of a new left conspiracy to make our cities ungovernable so that the revolution will happen. It posits that some half a dozen perhaps justifiably angry ex-psychiatric patients met a bunch of law students with an interest in civil rights and a habit of taking LSD on their weekends and have entered into a conspiracy which has given us the situation we have now. That is one explanation for it. I am a science fiction fan. I urge you to read this one because it is an alternative reality story that does include quite a few references to Ontario.
My marker is at electroshock. According to this footnote, this Legislature went even beyond the review committee's recommendations. These are the review committee's recommendations. Similar to advocacy, it was Keith Norton who began this and it was Murray Elston who received it.
The vast majority of these recommendations have not been implemented, which leads me to another interesting and important point: You will never get it right. Do not wait and discuss and debate and try to get this written so that everybody will be equally unhappy or whatever. It will never be right. Just get on with the work.
I have here a press release from Mr Elston's office that says things had been done to implement this report, but they have not yet been done -- such basic things as a written piece of paper with information on it for patients, their families, their substitute decision-makers, whatever, which Mr Elston said were done in 1986. It is still in the process of being written. Do not make that mistake with this proposed bunch of legislation. It has been studied to death for many years but it is people like me who would end up dying.
Things are getting better. This book is about 10 years old and is a product of OPSEU, the people who work in our institutions. There are two bits from it you must know about. They ask the question, "Who should be called to account for the humiliation and distress endemic in a system that often seems to be as psychopathic as any of those who need it?" Things are getting better. OPSEU no longer talks about psychopaths and so on.
You heard yesterday from Professor Lightman. Here we touch on the boarding home situation as of 10 years ago. Too often there are no standards. The potential for something better is there. A few are improvements on the institutions and they show up in their residents.
One such operation is a 25-resident boarding home on about an acre of land just outside Orillia. She is the kind of operator who is firm enough to say to a newly arrived ex-patient threatening her with a small table he had picked up in the kitchen, "You do that and I'll hit you with this," and she picks up another table. Nowadays that is generally recognized as inappropriate for a staff member, when someone is threatening violence, to pick up a table and threaten back. Ten years ago this was being portrayed as one of those better places. That place was called Cedar Glen, folks, and the operator at the time is named in here.
1150
This is not a product of anti-psychiatry or anti-medicine; this is the product of the Royal College of Physicians and Surgeons of Ontario. Alberta yesterday released a similar report. All our institutional care systems -- it is not just the psychiatric field -- need to have a serious look taken at them.
When we were in the near-permanent Progressive Conservative government era, both opposition parties wanted to see a royal commission of inquiry. Both of the parties that were then in opposition have had a crack at government. It is not just psychiatry, it is not just institutions for the the mentally retarded, it is not just for the children's or native Indians' schools and so on; it is all of them. We have to live with that history. I still would like to see a royal commission of inquiry, simply so that we could all know what that history is.
I have page after page of notes about specific things I have heard which I would like to refute. I am not going to do that. I will try to find one other sheet. One of the things that does concern me, whether I agree or disagree with what people are saying, is the way people say it as if it was the truth rather than their opinion.
Now, I understand that I have not been sworn in here or anything, and it is just as well. The number of charges which would have to be laid in what I have heard from some people here, on both sides of the question, incidentally, is really of concern. For instance, there is a coalition of organizations which has been very eloquent in its opposition to this. That is their opinion, that is fine, but yet they insist -- I have checked the Hansard; I have looked at the pinks, as I heard it, as it is written -- that they are the ones speaking for the professionals and the families and all the care givers involved. It is not the case; it is half a dozen organizations.
The Ontario Advocacy Coalition, which you heard from, has 35 organizations in it. The Association for Community Living is almost exclusively family members. People First is exclusively people with a "retarded" label. This pro-advocacy coalition, by the way, has everything from the association of Jewish seniors to AIDS Action Now to the Six Nations to a bunch of groups that, in all my years, I have never heard of. It concerns me that it has been presented to this committee that there is one organization, one coalition with one piece of the truth. That is just not the case.
How are we doing for time?
The Chair: You have just over 15 minutes left.
Mr Tapping: Okay, this will do to stimulate some questions, I hope. I am looking at an article from Psychiatric News of a year ago by Dr Theodore Lidz, sterling professor of psychiatry emeritus at Yale University school of medicine, career investigator at the National Institute of Mental Health, 1961 to 1978. He is not some ranti collanti psychiatrist. This story is Optimism in Treatment of Schizophrenia is Still Premature, Says Expert.
You have heard testimony about how it is known to be a genetic disorder. Dr Lidz points out that there may well be a predisposition and so on, but the concordance rates among identical twins for tuberculosis and polio were about the same as what is now being found for schizophrenia. These patients may, for example, be at the end of the distribution curve of neuromechanisms, rather than possess an abnormal gene. He goes on to point out that all the proofs from the CAT and magnetic resonance and the gene scannings are controversial, simply because most people are labelled or controlled within normal limits.
The one finding in research, according to Dr Lidz -- it has been replicated or found independently by experienced therapists and investigators at Yale, NIMH, Palo Alto, France, Japan, Finland, Tunis and elsewhere -- is that these patients have been raised in fairly specific types of seriously disturbed or distorted families.
I do not agree with all I am reading to you here, but I want to point out that there have been medical doctors coming to you and saying things that were their own opinions and prefacing them by saying things like "established," "scientifically proven," "documented," and so on. It is just not the case. Your job is to take everything you have heard with a large grain of salt and do the best you can.
I do not want to see this delayed much longer. This whole advocacy thing came up long before Father O'Sullivan was appointed to it. My personal experience in the field goes back to the 1960s. It has been about 10 or 12 years in this province that we have been talking about doing something like this, and let's get on with it, please. If you study it until you know it all, it just will not happen.
Questions?
Mrs Sullivan: I think that for all of us, Mr Tapping has spoken about the necessity of reaching a balance in terms of dealing with this legislation, and my only comment would be that it is our hope that we will be able to do that.
Mr Malkowski: I think it is important that we hear what you have to say, and it sounds like you are supportive of the concept of advocacy. We would agree 100% that it is time for us to take action and to set up an advocacy system at this time.
Mr Tapping: Please, just set it up. I love the way this advocacy commission proposal -- I can quite agree with some of the members here that it is really strange the way it is being set up, but new things always seem very strange. This is almost a self-help thing. The advocacy commissioners are not going to be looking for yet another bureaucracy. Those commissioners will have lived their lives in and among bureaucracies, and they are not going to want to do that. They will want to see advocacy happening.
There are obvious concerns in the legislation about things like confidentiality, but when you have lived in a situation without confidentiality of any sort, including the right to wear clothes, you will be really concerned about other people's confidentiality. You will not need everything written down to tell you what to do; you will be able to work from your own experience. They will be able to, but please, leave it up to the advocacy commission. Whatever amendments and so on you want, let them be done with dispatch. Let's get on with it.
The Chair: Mr Tapping, on behalf of this committee, I would like to thank you for taking the time out this morning and coming and giving us your presentation.
Just a reminder that there will be a subcommittee meeting immediately. This committee stands recessed until 1:30 this afternoon.
The committee recessed at 1200.
AFTERNOON SITTING
The committee resumed at 1335 in room 151.
ELDON HARDY
The Chair: I would like to call this committee back to order. Our next presenter will be Mr Eldon Hardy. We are discussing Bill 7, the Powers of Attorney Amendment Act; Bill 8, the Natural Death Act; Bill 74, the Advocacy Act; Bill 108, the Substitute Decisions Act; Bill 109, the Consent to Treatment Act; Bill 110, the Consent and Capacity Statute Law Amendment Act.
For your information, the committee members who are present are the Chair, Mike Cooper, Mrs Sullivan, Mr Poirier, Mr Chiarelli, Mrs Carter, Mr Wessenger, Mr Winninger, Mr Morrow and Mr Malkowski. Are you on line, Mr Hardy?
Mr Hardy: Yes, I am.
The Chair: You will be allowed a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. Could you please identify yourself for the record and then proceed.
Mr Hardy: My name is Eldon Hardy. Right now I am calling you from the medium security unit at the Kingston Psychiatric Hospital. Because I am presenting at all today, in the manner in which I am, I think I want to address that first. It might be the only issue I address here and it is specific to Bill 74 and to advocacy for the vulnerable in Ontario. I am going to begin by reading a letter which was faxed to the committee from myself March 9. It is addressed to Mr Cooper.
"Dear Mr Cooper:
"As I understand it, your committee will have been requested to seek a subpoena under the Speaker issuing a Speaker's warrant to ensure I am allowed to travel to Toronto and make my presentation concerning Bill 74. I urge both you and your committee to pursue this unusual step to both maintain the integrity of these hearings themselves and prevent my once again being silenced while attempting to identify serious problems within our system of justice as it pertains to providing advocacy to the vulnerable.
"It is my respectful submission this committee should not allow those who would necessarily not be favoured by a strong advocacy system from continuing to prevent my personal appearance at Queen's Park. The committee's entertaining any suggestions to travel into Kingston, if such has ever been being seriously considered, would itself leave a perception that the voice and rights of the vulnerable will continue to be compromised even after Bill 74 is in place. Anything short of my personal appearance at Queen's Park, as per my original letter of confirmation dated January 24, 1992, would certainly leave me unable to accept we are doing anything more than giving lipservice to advocacy again in Ontario for the second time this decade.
"Thank you for any efforts you and your committee members would undertake in the above regard."
Your committee, Mr Cooper, followed up from that with this letter faxed to the administration, the people holding me. Your letter was dated March 12 and they received it March 12. It reads:
"Mr Eldon Hardy, who is currently residing in your facility, has requested to appear before the standing committee on administration of justice, to comment on one or more of the abovenoted acts." Those would be the acts you referred to at the outset here.
"The committee has instructed me to relay to you our strong desire that this individual be allowed to appear before the committee. Mr Hardy would be scheduled to appear before the committee on either 24 or 25 March, 1992. The hearings are being held in committee room No 1, in the Legislative Building."
For your information, I find that this is a very poor arrangement we have come to and I consider it is going to always be the issue. It certainly has been in the past for me and many others I know of, certainly in the facilities like I am in, where we for ever compromise the voice of the vulnerable. I have in particular experienced this with psychiatric patients. In every effort I have made over many years in one way or another, no matter what effort it was or how great the effort, those who would necessarily be the ones we need strong advocacy to go up against always succeed in compromising the voice of the individual.
The fact that I am sitting here in a a common area in the medium security unit, not even at a phone which as I was originally told would be at least in a private office to give me some space, tells me that we are not really prepared to provide strong advocacy; at least I have to look at it that way. I am very concerned that I am sitting at this phone rather than appearing before you and that those to whom we need to address this simply seem to walk all over us.
I want to read to you part of the response, dated March 6, that Mr Larry Taman, a lawyer who tried to negotiate for several weeks to get me before your committee, sent to the administrator, Mr Wayne Barnette. This was in an attempt, probably for the third time, to get cooperation to allow me to present before you people. I will begin his letter:
"For reasons which I think will be apparent upon reading this, I write to you instead of to Dr Jones in a last effort to obtain your hospital's agreement to take Mr Hardy to give testimony before the justice committee of the Legislature.
"In Dr Jones's communication with Mr Hardy and in Dr Jones's communication with me, he said that Mr Hardy would not be transported to the hearing because the hospital cannot afford to do so. I attach his memorandum to Mr Hardy of February 18, 1992. You will note that there is nothing in this letter to suggest that there is any other reason.
"In my subsequent conversation with Dr Jones, he indicated that he did not agree with my assessment that it was in Mr Hardy's interest to be given the opportunity to participate in this way. None the less, this was at no point advanced as a primary concern. Now the legislative committee has offered to pay all the costs for Mr Hardy's attendance before it. I understand that Dr Jones is still unwilling to permit him to attend. He indicates that it is true that the committee does have a teleconference facility which could be made available for the purpose of Mr Hardy's submissions.
"I am at a loss to understand why the hospital will not transport Mr Hardy now that the standing committee has agreed to bear the costs. For Dr Jones to determine that teleconferencing is an adequate substitute is merely to substitute his judgement for Mr Hardy's, in a manner in which Dr Jones has no mandate to decide for Mr Hardy. I believe that Mr Hardy will see this as a real breach of faith.
"For my part, I spent a good deal of energy in attempting to arrange for Mr Hardy to attend. I am left wondering whether these efforts have been met with a proper response on the part of the hospital. I would again reiterate my request that you intervene directly to permit Mr Hardy to attend in Toronto" -- that was for an earlier date of Monday -- "I would say to you respectfully that the institution has not advanced any interest other than a resource interest in declining to do so. Now that that obstacle has been overcome, I do not understand what proper reason can be advanced for failing to accommodate Mr Hardy's request."
I think those three letters that I have read sum up very adequately the very point. Here is a lawyer of some standing who had worked very hard with this issue, negotiating with these people to allow me to present directly before you. There was no reason I should not have been able to. In fact, any reason they had was removed.
At one point, the doctor indicated -- and I will read part of his letter -- "This is atypical." In one part he says that he and a Dr Chan "are of the view that your appearance before the committee" -- that is my own -- "would be countertherapeutic and that this negative effect could be tempered by a proposal for a conference call, which would be somewhat less so."
Every excuse is advanced to prevent either myself or others from being able to present wherever it might have some significant impact. I do not know where you think this could go today, beyond my making this particular point. I think it is one you are going to have to look at time and time again, and certainly the Advocacy Act, Bill 74, is going to have to have some teeth in it.
I can only go back to the psychiatric patient advocate office in the early 1980s. There were many of us then, and I was one of them, who had great concerns about how that office would operate and what sort of strength it would have. As it turned out, it had very little. I was interviewed by The Star, I believe in 1983, and they quoted me then as stating, "All should not be considered well in the mental health system simply because the patient advocate office is on the job." Ten or more years later, that is exactly the case here. We have a bureaucracy inside a bureaucracy, and the patients are kept swimming in that.
We envisioned then that we would not have strong advocacy. We are looking at Bill 74 and I can tell you that my brief, which I did prepare and hoped to present to you in person today, is entitled Advocacy For and By Ourselves, because basically I think that is where it is at. Psychiatric patients or vulnerable persons, all those who are capable, are going to have to be allowed to advocate and with laws to back us up. When we have to rely on others who have not had our personal experiences, we do not have any opportunity whatsoever to make any impact where it is going to matter.
Many of us can advocate but we are not allowed to. When I speak up in these institutions they shut me up or they compromise my voice. Because I dare to take up the issues with these people, I wear the worst psychiatric diagnosis and prognosis. Everything is done to sit on me. You saw a very good example of that in that every effort made to get me before you has been stopped simply by people putting out such opinions as, "It would not be therapeutic." I do not know what could be more therapeutic than my having an opportunity to address some of these issues, but I was left this morning, at the last minute, being informed that I am going to have to settle for talking to you on a phone. That seriously compromises everything I have ever been trying to do, and it certainly does not give anyone a very good impression about where Bill 74 will go.
The psychiatric patient advocate office had no teeth. It should have had sabre-toothed fangs. You need troubleshooters in these systems and people you will thoroughly back up. I do not see too much of that yet in Bill 74, but you must realize that my communication with you earlier -- and I am not pulling punches on this. You have compromised my voice. You have allowed it to happen. You did what you could in your letter requesting it, but they were able to simply ignore you. They were able to simply ignore a lawyer, and they have ignored me easily.
I do not know where you want to take this one here. I do not have a lot more to say because I am quite angry about this. Does anyone there want to address this one?
The Chair: As you began your presentation, Mr Wilson and Mr Mancini joined the committee, just for your information. There is about five minutes for each caucus for questions and comments. I remind members to raise their hand before they speak to make sure the microphone is on or he will not be able to hear you.
Mr Poirier: Jean Poirier here, Mr Hardy. I realize you could spend many hours to make the point about the nature of your presentation today, but did you not want to elaborate on the particular points you would have wanted to make today, regardless of how you are making them? We are here. We are listening to you. I for one would like to hear your comments about Bill 74 and any companion legislation. Do you want to do that?
Mr Hardy: I can read part of my brief. I guess I take the position that it is an issue primarily of credibility. I do not see much credibility in what we have done for vulnerable persons over many years. When we talk about empowering psychiatric patients or the vulnerable, we do not talk very much at all about depowering the powerful, those persons who have all the power over us. They seem to get more power as we go.
Mr Poirier: You seem to have studied --
Mr Hardy: I am trying to get to a particular recommendation here. I addressed an issue with a couple of insurance companies and consultants with the Workers' Compensation Board, who as you may know in the last four or five years have been looking at the issue of chronic stress and whether it should be compensable and how they would go about it. In my conversation with them, they wanted me to send my recommendation to them. I suppose one could consider it a somewhat radical view, but they are very much interested in it. I wonder if I could read that to you.
Mr Poirier: If you feel it is part of what relates to Bill 74, go right ahead.
Mr Hardy: Yes, it is. Persons employed within the mental health system, particularly front-line workers, should be required to undergo full independent assessments by either psychiatric or non-psychiatric specialists to have determinations made as to their mental fitness to continue in their current employment. This recommendation is specifically warranted in light of the Workers' Compensation Board considering a policy proposal on compensation for disablements arising from workplace stresses. This group of workers often find themselves laying claim to their workplace being an unusually stressful workplace. Often expressed by these workers is that their particular workplace consists of working with persons who are often portrayed, unfairly and inaccurately at times, as difficult persons to work with.
This itself can easily come to be considered as the basis for confirming that they work in the unusually stressful environment to give anyone associated with WCB policy proposals some considerable cause for concern.
1350
The many workers in the mental health system who may be potential claims present not only the possibility of staggering costs but many other costs which are not as easily recognized. Psychiatric patient advocates have operated in the system since 1983 and too often mental health workers were able to use the advocates investigating a complaint as grounds for making the argument that the workplace has now become too stressful. This acts to intimidate and see less serious pursuit of the vulnerable person's complaint of rights being violated and increases the chance of the guilty worker being either absolved and the abuse continuing unchecked or a watered-down conclusion drawn from any investigation, which has the same end result.
It is my position that the coming into effect of an Advocacy Act should not be associated with seeing the vulnerable in these workplaces becoming scapegoats to allow claims receiving virtual rubber-stamping simply because workers are unable to cope under stresses however unique the stresses may be in their particular job.
The employer has a right to know, and I believe the legal right to require the employee to show through testing, that the worker is psychologically fit to meet the demands of the job while not compromising on the quality of service for which they were hired, whether this has been a requirement of their employer at the outset or not. The employer has had the legal right, for example, to require his employees to minimally obtain registered nursing assistant certificates, while evidence of mental fitness may not have been a requirement when first taking employment. In a mental health facility, it nevertheless has been essential to upgrade the care in the facilities to the new standards needed to meet in order to earn hospital accreditation.
Just as has been the case before now, it again calls upon the employer to upgrade his or her skills or other job-related qualifications specific to a particular type of work and to demonstrate possessing these qualifications. Just as important, it is the right of the vulnerable to also know that persons caring for them are qualified and are not going to act to sabotage programs designed for the protection of the vulnerable.
Certainly the resistance from unionized employees has been considerable in institutions in the past when the rights of the vulnerable were seen as threatening to the worker and this has led to the workplace becoming more stressful as a result. It is always within the administrative mandate to either improve or ensure the quality of services being provided to the vulnerable inside the particular facility.
I believe further that a new advocacy program will act as a catalyst for a more aggressive renewal of the principle protecting the rights of the vulnerable and to ensure they are not in the environment which is oppressing or abusing them. This is sure to bring renewed calls from mental health workers and their unions on the new stress levels they are experiencing, how it is all interfering with treatment, or aggressive campaigns complaining that security and good order are threatened etc, all of which will be designed to neutralize the effectiveness of the advocates.
This occurred when the Ontario psychiatric patient advocate office began its efforts to protect the rights of psychiatric patients. It is therefore doubly important that the relevancy between compensation for work-related chronic stress and the purpose of Bill 74 not go unnoticed. The mental health worker should have to show that he or she is capable of having the motivation to develop the appropriate attitude and willingness to participate without succumbing to stresses, real or imagined.
I am deeply concerned about the consequences for the vulnerable in institutions where the employer may entertain many oppressive -- oriented towards the psychiatric patients -- measures to satisfy front-line workers of a near stress-free workplace or run the risk of seeing a large increase in stress claims with the associated financial cost.
The employer may become pressured to escape these costs while the employee may directly or indirectly, for self-serving interests, act to see that these particular workplaces remain seen as highly stressful environments to facilitate the easier validation of a claim to the WCB adjudication process.
At issue is how much more difficult it will become for the vulnerable in these institutions to have their complaints of abuse addressed inside a framework which is likely to become more and more oppressive, due to the competing interests of labour and employers seeking to have the working environment either more or less stressful.
Many staff complain of being under stress the instant a complaint of abuse is made against them. Often the more serious the complaint of abuse, the louder the claim of stress is made. This could too easily be used as a ploy to detract from the main issue of the complaint and prematurely be acting as an indication of innocence on the part of the worker. Administrative and management levels will become more inclined to want to discourage the patient from registering a complaint.
I would like to see this recommendation serve to bring the issue of mental health workers being fully tested and assessed taken up with the appropriate ministry levels with a view towards policy development for workers within Ontario mental health centres, hopefully to coincide with Bill 74 becoming legislation.
I do not know what you make of that one, but I have talked with an awful lot of people and they agree with me that we have an awful lot of people who work in the system who actually create more problems than one could ever solve with any advocacy program. Often, and I have experienced it in the last two years directly, where every time an issue is brought up -- the advocates at some times have brought things up and they were challenged by unions, basically to intimidate them, hollering that they were creating too stressful an environment. Every time a complaint is brought against one of them, they are under stress; everybody backs off.
I think, myself, this is perfect timing. Those I have talked to feel this is something that should be seriously looked at. Apparently, with all those who submitted on this particular proposed policy, the unions and whatnot, all of them, not one of them wants to be seen by a psychiatrist. They all want to be seen by non-specialists. They all have good reasoning, it would appear, but they certainly want to be covered for it. We have experienced it. There was a disaster down in California with this one, I think.
In any event, I present that view to you on this sort of thing, and you might want to look at whether this should be considered in any way because I see some relevancy here. Usually the workers who want to be off the job all the time create the most problems. That is usually an escape hatch.
The Chair: Thank you, Mr Hardy.
Mr Hardy: I know the kind of problems this creates in a facility when you have --
The Chair: We have to move along.
Mr J. Wilson: Thank you, Mr Hardy. I think your brief sounds quite comprehensive and I hope we get an opportunity to read it.
I want to make a brief comment. You mentioned in your remarks that the government had done all it could to ensure that you could appear here today. You are aware that a warrant could have been issued and the Legislature reconvened. Instead, the government took the route to send a couple of what they must have known to be useless letters to the administration of your facility. We argued that the letters would not do anything and knew you would not be able to appear here as a result of those letters. I want to make sure it is on the record that that is an option open to the government, Mr Hardy.
Mr Hardy: First of all, I understand that the committee did all it could. I have no quarrel with that. My issue was that despite their many efforts, all it took was for those persons who, as I said in my letter, would necessarily not be favoured by a strong Advocacy Act, to say no to all of you and you could not do anything about that.
How could you possibly see yourselves -- any government, whether the NDP government or some other government -- backing up an Advocacy Act, how could you see that happening if every time, no matter what your efforts were, all those other persons need to do is dismiss you? That is basically what happened here. What teeth would there be in an Advocacy Act?
Mr J. Wilson: That is not exactly the way it is. The point is that there is an avenue that was not exercised, and I am not going to comment on whether I would have agreed with that avenue, but it is one the government did not exercise, so to be totally critical of the administration is only placing part of the blame where it should be.
Mr Hardy: Where do you think the rest of the blame is?
The Chair: Thank you, Mr Wilson. Ms Carter.
Ms Carter: Thank you. This is Jenny Carter speaking. I want to assure you, Mr Hardy, that we did everything we could to get you here. I should point out that if we had gone for a special warrant it could not have taken effect until after the House had resumed sitting, and this is the last day of hearings.
We certainly hope with Bill 74 to reach all vulnerable people, and you have said it needs sabre teeth. I wonder if you have any suggestions as to what amendments could be made to that bill to give it the sabre teeth you are suggesting.
Mr Hardy: I am concerned about rules of evidence. I believe stricter laws are required to protect the evidence given by vulnerable persons in complaints of abuse from being unjustly and unreasonably stampeded with psychiatric opinions etc, which have the effect of confusing the issue of fact or operate by design to distort the seriousness of the abuse complained of. Recent changes in legislation affecting warrants of the Lieutenant Governor are limited when issues of a person's mental health may be presented before the facts of an alleged offence are examined or established. The rationale for such legislation supports the need for protection when vulnerable persons act as witnesses and give evidence in cases of registering a complaint about abuse.
That is in part 1 recommendation. I do not complete it here; I have taken a lot of time already.
The fact of the matter is that for something to have any teeth, I do not know how it is that we can have hundreds of psychiatric patients -- this has happened time and time again -- line up one after another and all repeat virtually the same thing about a particular abuse and everybody just sits there and listens to it and it just goes by the wayside. Two people can show up for work in the very system they are complaining about and say the complete opposite, completely deny it and suddenly the evidence of those persons means nothing. I think there is something wrong when we cannot have rules of evidence that prevent having the evidence of people who are vulnerable, and certainly psychiatric patients, just being simply dismissed out of hand, because persons who would necessarily be being complained of can just have it dismissed on the basis of presenting psychiatric evidence.
It goes on all the time. The first time there is a serious complaint of abuse there is a hearing, whether it is a formal hearing in court or a health discipline board or an inquiry or inquest. A fight begins about producing confidential information about the patient, which is designed to present those very psychiatric views to undermine what the patient or the vulnerable person is saying and have it dismissed out of hand or prejudiced.
I would like to see rules of evidence come into place. I think the government needs to look at limiting when this kind of thing can happen. Also, it is often fought over for weeks and months at a time, about producing confidentiality into an issue, and that sometimes is a stalling tactic used very well by the person you might be complaining about, delaying tactics. They fight over whether it can get introduced in the first place. It usually ends up with its being introduced, so by the time the vulnerable person shows up with the evidence, rather than the evidence being heard on the merit of what is being examined at the time, it is dismissed.
I would like to see stronger rules of evidence, stricter rules of evidence drafted to prevent this sort of thing. That would give it more teeth so that at least when a person is complaining or has something to say, it is not being dismissed out of hand and has the same weight or at least significantly the same weight as it would be if another person without a disability was presenting it. We do not have that protection anywhere in law. I think you are going to need laws like that. I do not think you should be waiting to think of things like this after the fact either.
There is another recommendation I think was completely overlooked in Bill 74 -- perhaps not completely. It concerns what I would propose for a revision. I will read that; it is short. "The proposed Advocacy Act leaves it to be understood that minority groups will receive every effort to `ensure equitable representation on the commission.'" I question strongly whether it is advisable to leave one particular minority group of vulnerable persons to have every effort made after the fact of legislating Bill 74 when they could and should be written clearly into the act now.
The act should have written into it now to include on the commission persons whose sexual orientation has resulted in their being victimized daily in our institutions and by society generally. Persons who are gay, lesbian, bisexual, transvestite or transsexual are wide open for abuse even without being under any disability. Those who come into our penal institutions or into the psychiatric professionals' domain of the mental health system are severely ostracized by the psychiatric profession and other health care workers from those within their own peer group inside the institution.
This particular minority group's vulnerability could not be addressed any more adequately than it has through an 8-page submission dated March 6, 1992, which is submitted in writing via mail to this committee from Mr Richard Elliott on behalf of the Lesbian and Gay Association of Kingston. As a member also of the Queen's University student community service group, Mr Elliott presents more than sufficient reason for seeing that this group of vulnerable persons does not need to fight to find themselves recognized as persons in need of advocacy.
What is clearly being said there is that it should be written into the act that they will be represented and not simply left in "minority groups" and they will have to fight later. That particular group of people has to fight all the time to get any kind of recognition. Certainly they are going to need advocacy.
The Chair: Mr Hardy, on behalf of this committee, I would like to thank you for your presentation today, although under somewhat awkward circumstances. Could you please stay on the line for a few moments after we are done here?
Mr Hardy: I did not want to give the impression I was attacking the committee in any way when I made my point about not being able to get there today. I want to repeat that the committee did everything it could. I know they did. The fact that their efforts, as much as they were, could be foiled by the persons in opposition to my appearing there is the reason why we need very strong advocacy.
The Chair: Thank you very much. Please stay on the line.
This committee will recess while we move back to committee room 1.
The committee recessed at 1405.
The committee continued at 1415 in committee room 1.
The Chair: I call this committee back to order. Mr Mancini.
Mr Mancini: Mr Chairman, I raised a point when we were adjourning from the other room, and this concerns me a great deal. The last witness seems to have had the opinion that we did not have the authority to have him appear before us. As we all know, that is incorrect and I do not think we could leave that on the public record. At the very least, some kind of communication should be sent to this person and to the institution outlining the authority this committee had to have that person appear.
I do not think it is appropriate for all of us to sit in this committee chamber, silent, with our mouths closed, when part of the public believes that we are lacking in some authority that we all know we have, no matter what the circumstances are. If the circumstances are that the Legislature had to be in session for us to get the Speaker's warrant that was talked about, then that should be explained and fully disclosed. For us to do anything less, in my view, is irresponsible. So I look to you, Mr Chairman, for some kind of guidance on this and maybe for some help from the committee members who have been silent through this whole process and wanted to let that ride. I am not going to let it ride, because it is not factually correct.
Mr Morrow: Just before we go to the people who are presenting, was there not an all-party agreement on that letter?
The Chair: The subcommittee did meet on several occasions and we had great difficulty in trying to determine what we were going to do with this particular witness. The subcommittee did agree that we would not go the route of a Speaker's warrant.
Mr Morrow: So there was an agreement then, Mr Chair?
The Chair: Yes, there was.
Mr Mancini: Mr Chairman, Mr Morrow is confusing the issue. The issue is not what the subcommittee agreed upon; the issue is the authority of this legislative committee and other such committees. That is what is at issue, not what the subcommittee agreed upon. If the subcommittee did not agree to issue a Speaker's warrant, that is one thing; for the general public to believe we do not have the authority to issue a Speaker's warrant is something altogether different.
I think it is irresponsible of this committee to have the person we heard from believe this committee did not have the authority to issue a Speaker's warrant, when in fact we do. We need to explain to that person the circumstances as to how and when and why we can issue one. That is what I want to clarify. What the subcommittee agreed upon has nothing to do with this issue.
The Chair: It is my belief Mr Hardy was made aware that we did have the power to do a Speaker's warrant. If it was not personally conveyed to him by the clerk, then I am sure the clerk would take it upon herself to contact him and let him know.
Mr Mancini: No, Mr Chairman, that is not good enough. We clearly heard the witness less than 15 or 20 minutes ago say that he thanked this committee for "doing all it could to get me before this legislative committee." He said: "I don't blame you, I blame this institution. You tried, and isn't it sad that the legislative committee couldn't override two people in this institution."
The person firmly believes and everyone he is in contact with will firmly believe and the record will show and will lead other people who read the record to believe that this committee had no such authority, when in fact we did. I am not saying a Speaker's warrant should have been issued. I am not taking any issue with what the subcommittee decided or did not decide to do. That is not the issue here. The issue is whether or not we had the authority to issue a Speaker's warrant, get the witness before us, how it could be done, when it could be done and everything that revolved around that.
Frankly, it is irresponsible of us to sit here silent and pretend that we did not hear those words and that we could not issue a Speaker's warrant. Whether we want to or not is a separate issue, but surely we have to put that issue to rest and we have to clarify the matter for the public record.
The Chair: I think that clarifies the record now.
Mr Mancini: It clarifies the record --
The Chair: I am in your hands. What would you have us do?
Mr Mancini: It clarifies the record for us sitting around this table. It does not clarify the record for the witness and for whoever will come into contact with the witness or whoever will read his portion of the transcript. I suggest that a letter be sent to the witness outlining how a Speaker's warrant is issued, why one was not issued in this case and what authority this committee has or does not have. That is what is needed, Mr Chair.
The Chair: Would you like to put that in the form of a motion, Mr Mancini?
Mr Mancini: I do, and I so move.
The Chair: It is moved by Mr Mancini that we write a letter to Mr Hardy explaining the process for a Speaker's warrant and the process we went through and why we decided not to.
Mr Mancini: If you want to include that, that is fine with me, but surely we have to clear the record.
The Chair: The process.
Mr Mancini: We have to underline the process. If there is anyone in this Legislature who should believe in the integrity of the process, it should be a number of people I have faced over many years.
Mr Winninger: I do not have any problem in principle with Mr Mancini's suggestion that we outline the terms and conditions of a Speaker's warrant. I would just like to say for the record that I think it is a little late in the day for Mr Mancini to raise this. He could have brought a motion for a Speaker's warrant earlier and he chose not to because there had been a constructive dialogue among the members of the subcommittee with the conclusion that a follow-up letter of support for Mr Hardy's application to leave the institution would be reasonable and appropriate under the circumstances.
Now, after Mr Hardy has already given his testimony by videoconferencing, I think it is an inopportune time for Mr Mancini to raise this point. I do not think it is constructive and I do not see what gain there is in doing it, but if it will make Mr Mancini happy, I will reserve any objection I have.
Mr Morrow: I too will be supporting the motion. The subcommittee had met and had decided that in our time frame we could not get a Speaker's warrant. I believe that was the reasoning. I will be supporting your motion, Mr Mancini, although I agree with Mr Winninger and would have hoped it would have come earlier.
Mr Mancini: I am surprised that Mr Winninger, a person trained in the law -- maybe that is one of the difficulties, I do not know. A person skilled in the law, a person who has maybe as much expertise as anyone else on this committee on the issues we are facing -- for him to want to deliberately confuse the issues, to me, is very surprising.
I said during my explanation that whether or not anyone on this committee would vote for the Speaker's warrant is not at issue. What the subcommittee decided to do or not to do is not at issue. What is at issue -- and I watched you listening very attentively to our witness -- is that person believed something other than the truth. He believed, and said so, that this committee did not have the authority to do exactly what we have the authority to do.
He said two people in his institution overrode this committee. That is what he said. For us not to want to clarify that and for members of the committee to want to confuse that with whether or not the subcommittee or Mr Morrow or Mr Wilson or anyone else on this committee would vote for it is really irresponsible.
Mr Winninger: On a point of privilege, Mr Chair: If anyone is obfuscating or confusing the issues, it is Mr Mancini, because he knows well --
The Chair: That is not a point of privilege, Mr Winninger.
Mr Winninger: Point of order, then.
Mr Mancini: That is not a point of order either.
Mr Winninger: On a point of order, Mr Chair: He knows well that Mr Hardy was satisfied with the efforts of this committee to get him here. He may not have known that the two Conservative members of the committee objected to paying his costs to get him here, but on the whole he was pleased with our efforts.
The Chair: You do not have a point of order, Mr Winninger.
Mr Mancini: Since there is no point of order, can I have the floor back?
The Chair: Mr Mancini.
Mr Mancini: Mr Winninger does not know the rules of the legislative proceedings either. He does not know when he is out of order. He does not know what a point of privilege is. Sir, you heard our witness say --
Interjections.
The Chair: Order, please. Mr Mancini, on the motion.
Mr Mancini: Thank you, Mr Chairman, you are doing a good job.
Mr Winninger, you heard our witness say he believed we had done all we could. You heard him say that. You heard him say there were two people in the institution who overrode the powers of this committee. You heard him say that. That in fact is not true. For us to leave that as part of the record is very wrong.
I hope, Mr Chair, that we could get on with the motion without further obfuscating what the issue is.
Mr J. Wilson: If it is my turn to speak and there is no debate, I call the question.
The Chair: No. Mr Sterling was next on the list.
Mr J. Wilson: He is calling the question.
The Chair: All those in favour of calling the question?
Mr J. Wilson: I do not know. We had better give him a chance.
Mr Sterling: That is what I was going to do.
The Chair: All those in favour of calling the question? Opposed? I call the question on Mr Mancini's motion. All those in favour? All those opposed?
Motion agreed to.
Mrs Sullivan: I would like to place the motion I put before the committee this morning. The clerk has a suitable number of copies for the committee.
The Chair: Mrs Sullivan moves that:
"Members of the standing committee on justice recognize (a) that Bills 74, 108, 109 and 110 are complex, interrelated pieces of legislation, whose principles are broadly supported; (b) that representatives of health care professionals and practitioners, consumer organizations and agencies, and advocacy groups have advanced reasoned, serious and objective criticisms of the bills, and put forward proposals for their improvement and practicable implementation; (c) that the government has put forward no proposals for amendments to the bills in a public forum and provided no commitments regarding consultation on review of any amendments.
"Therefore, be it resolved that the standing committee on justice advise the respective ministers that it recommends:
"1. That Bills 74, 108, 109 and 110 be withdrawn from active legislative consideration, and be considered as draft bills;
"2. That the bills be reprinted with the government's proposed amendments;
"3. That the redrafted bills be circulated for public analysis and comment during the spring 1992 session;
"4. That a renewed period of public hearings on the redrafted bills be conducted by the standing committee on justice during the summer 1992 intersession;
"5. That clause-by-clause consideration of the redrafted bills be conducted by the standing committee on justice during the summer 1992 intersession;
"6. That the bills proceed to committee of the whole House in the autumn 1992 session."
In fairness to our presenters, do you want to discuss this now or put it over until after our last presenter this afternoon?
Mrs Sullivan: We would prefer to proceed now.
The Chair: Discussion?
Mrs Sullivan: The wording of the motion is virtually self-evident in that it is very clear from discussions before the committee that the preamble of the bill is a fair representation of the situation in which we find ourselves: clear approval in principle on the nature of the legislation, and clear serious concerns and objective criticisms about the specific content and drafting of the bills and the effect they will have if implemented in their current forms.
We know that many groups and organizations have expressed very serious reservations because they have not seen the intent of amendment, although there has been an indication from the ministers involved before the committee that amendments will be coming forward. There was a very clear determination in a response from the parliamentary assistants at our last session that there would be no further public consultation or review subsequent to the amendments.
We are very concerned that these pieces of legislation will affect every single individual in Ontario. They will affect every single family. They will affect every single health provider operating as a professional. They will affect every single person whose vulnerability we are concerned about.
1430
We have had public hearings that have indicated a controversy that is deeper, although less public, than the controversy associated with Sunday shopping. There are serious legal, ethical and moral concerns about these bills, but even more than that, there is serious concern about the effect of these bills if and when implemented.
We believe in a process for reconsideration of the bills so that government amendments can be put on the table, through the process which is presented here, so that there can be additional public consideration, so that suggested changes and concerns relating to those amendments can be put very clearly before the committee again. The process we are recommending is indeed an appropriate, streamlined process which follows the rules of the House and ensures there will be consultation that will lead to some greater concurrence on the redrafted bills. We believe this is reasonable.
I think we have made it very clear -- our party and the third party -- throughout these hearings that there is no disagreement on the principles of the legislation. Where there is disagreement is on the particular approach in the drafting, on the costs associated with it and on the lack of information that is being put forward. We believe this is a process through which all those areas can be explored with the full information of the government's intention. That is why this motion is on the table. I urge the committee to accept it, and we will be pleased to cooperate as this new process moves along.
Mr J. Wilson: Before we give fuller comments on the motion itself, I have a question to the parliamentary assistants present that pertains to the motion. When are the government's amendments coming forward and how substantial are those amendments? We did have a cancelled subcommittee meeting at noon today in which we were going to hash out some tentative dates, so I would like a response to that question.
Mr Malkowski: I think first what we need to say is that we are not finished with public hearings. We need to finish the rest of the afternoon and then we need time to review those presentations.
Mr J. Wilson: That party, the NDP, does not seem to understand that these legislative committee hearings are not their public hearings, as the public understands public hearings. These bills have gone through the House and received second reading. These hearings traditionally in parliamentary procedure have been used to fine-tune legislation, and what we have been hearing from witnesses is that there has to be a major overhaul of this legislation for it to be acceptable.
I think it is incumbent upon the government to bring forward amendments, rather than have witness after witness repeat a number of points that are brought forward and each time have the parliamentary assistant say, "Well, don't worry about that because we're bringing forward amendments." You are going to waste a lot more time and taxpayers' money if you do not bring forward your amendments before these hearings end today. Let us know exactly what you are intending to amend. Otherwise we are going to be recessing. We are all going to go back to our respective caucuses, get our research departments working overtime to draft similar amendments and duplicate efforts, when it would have been a lot easier if the government had brought its amendments forward and not used these legislative committee hearings as public consultation. That should have been done months ago before these bills were drafted and presented to the House, in my opinion.
Mr Winninger: I just want to say briefly in response to Mr Wilson's remarks that he is beginning to sound like a broken record, because we heard this on day one and we heard this on day two and so on.
Mr J. Wilson: At least I am consistent.
Mr Winninger: I think the message has gotten out to the public that we want to hear from everyone before we review the amendments that have to be made.
Mr J. Wilson: That is a political spin you have put on this.
Mr Winninger: Some people have said that fine-tuning is required here, not a major overhaul. If we are going to take these recommendations at all seriously and improve the legislation, which to my mind is the purpose of the sitting of this committee, then we have to do just that. If we move prematurely on this matter, then we are going to waste the kind of time and money Mr Wilson just alluded to. So I am afraid that Mr Wilson and I cannot agree.
Mr Sterling: I would like not to support this, but I am being put in a position where I must support this motion, because notwithstanding the scolding that Mr Winninger has given Mr Wilson, the fact of the matter is that Mr Wilson's position and the position we have taken on this side has been continually supported and buttressed by witnesses who have appeared in front of this committee. Therefore, I find myself in a very difficult spot, because we wanted, and I continue to want, to be constructive, but without the government making any move, in spite of the overwhelming amount of evidence that has been placed in front of us, without it showing its hand at all, I am not certain it is able to fix up the legislation to meet the arguments of the witnesses.
If they could demonstrate to me that they can meet what has been brought forward, that they have sat down and thoughtfully put forward a number of major amendments which will address the very significant concerns on these bills, then I would be tempted to vote against this particular motion. So I leave it open to you, the government members. Are you willing now to put down on the table what you are planning to do? We are getting very close to the end. I would have preferred to have this motion discussed at 3:30 after these people and other people have made their presentation.
Mrs Sullivan: I think perhaps we could hear from the parliamentary assistant for the Minister of Health.
Mr Wessenger: I would like to say with respect to this motion that certainly as far as the bills are concerned, I consider that we are going through the normal legislative process here. I would also like to assure members that it is certainly the intention that with any amendments that are presented, the opposition will have ample time to review those amendments.
I know the Conservative members indicated concern about whether they have to get their research staff started on doing their own amendments. I would like to assure them that I would certainly like to continue working in cooperation with respect to the bills. Certainly it is the intention to give ample time for them to examine any amendments that are put forward, but at this stage we are not really at the stage of putting forward amendments. I would like to assure the opposition that it is the intention to have ample time to look at the amendments that are made so they can do their appropriate response to them.
Mrs Sullivan: I would like to point out that this is not a normal consideration of a normal, average piece of legislation. We have been discussing in this committee six bills, four of them put forward by the government, all of them interrelated, all of which require consideration of their interrelationship one with the other, all of which affect, as I have indicated, every individual in the province, not a small sector.
This is not a normal, average, routine situation. I am astonished that the parliamentary assistant for the Minister of Health considers this to be a routine matter. We are dealing with changing common-law issues that have been common law for hundreds of years and whose evolution has changed substantially in the past 30 years. Now we are attempting to codify those common-law issues along with new concepts that have evolved and become socially desirable in the past 10 to 15 years. This is not something that is easy, straightforward and simple. This is very complex.
We are asking that the government bring forward its amendments and commit to a period of time for analysis and comment, so that we can go back into a renewed public hearing process on the redrafted bills, to hone those bills and ensure they become workable. I do not understand why there is any objection to this motion and I am astonished that the parliamentary assistant believes this is a matter of some simplicity.
The Chair: Further discussion on the motion?
Mr Morrow: I believe you are going for a vote at this moment.
The Chair: I was about to call the question.
Mr Morrow: First of all, I would like to apologize to the witnesses who have been sitting here waiting from 2 o'clock, but I would also ask for a 10-minute division.
The Chair: A 10-minute division; we will resume at 2:51.
The committee recessed at 1441.
1451
The Chair: I call the committee back to order.
Mrs Sullivan: Mr Chairman, I request a recorded vote.
The committee divided on Mrs Sullivan's motion, which was negatived on the following vote:
Ayes -- 5
Mancini, Poirier, Sterling, Sullivan, Wilson, J.
Nays -- 6
Carter, Ferguson, Morrow, Wessenger, Winninger, Malkowski.
The Chair: We will now proceed with our schedule.
First of all I would like to welcome to the process the University of Toronto students in attendance today. This is a necessary process. I apologize to our witnesses who have waited patiently.
MARJORY M. CAMPBELL
The Chair: Our next presenter is Marjory Campbell. I just remind you that you will be allowed a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. Could you please identify yourself and your guests for the record and then proceed.
Mrs Campbell: My name is Marjory Campbell. I speak as a private citizen and as a long-term mental health consumer. Due to illness Ms Golightly is unable to be with us today. In her place I am pleased to have with me Mr Rick Dafoe, a fellow consumer who has suffered from the same disorder as she, and my husband, Mr James Campbell.
We wish to thank you for this opportunity to present a further viewpoint from among those who would be most deeply affected by the implications of Bills 74, 108, 109 and 110. We are proud to be part of a society whose elected representatives invest so much time and energy in pursuing justice for citizens who are at a relative disadvantage compared with the majority. The theme of this brief, taken directly from the Canadian Mental Health Association's 1991 national conference, is Partnership for Change.
As I said, I speak as a consumer. I should like to narrow this further. I am not qualified to speak of consumers who become such because of deep-rooted social and/or emotional problems, nor even of those who suffer or have suffered from the milder forms of major psychiatric disorders.
Because of the nature of my own experience over the past 11 years, and because this is what the Graham report strongly suggests we all do, I shall concentrate on those who, like myself and Rick, are afflicted with serious to severe forms of psychiatric disorders. We suffer respectively from bipolar affective disorder, until 1983 known as manic-depressive illness and schizophrenia, each of which is reported to affect one out of every 100 people in the population. The effect of these disorders is that our brains function at full capacity some of the time, yet are at odds with reality at other times. You can imagine how fraught with difficulty our interpersonal relations become at times for us, for our family members and for thousands of similarly affected families across the province.
Legislation: It is largely because of the increased fragility of our closest relationships that many of us consumers have concerns about the Advocacy Act as it is presently before us. We agree that given certain amendments, a percentage of the disabled could benefit from the services of a roving advocate. Those are vulnerable persons with no trusted family members and no trusted non-family significant others. This relatively small minority, whether psychiatrically or otherwise disabled, is especially vulnerable. We feel particularly for those vulnerable persons whose parents have abandoned them as children because of a serious developmental or mental handicap.
However, Rick Dafoe and I and most of our consumer friends wish to state emphatically that we desire to continue discussing our options with significant others: close family members and/or fellow consumers and/or trusted health professionals.
1. Rights of entry: We see no need for another third party, the advocate, whose rights would not end at his or her office door but would extend into our and our family members' inner sanctum, our own home. Such unwarranted invasion of privacy could, and we are pretty sure would, in a significant number of cases wreak permanent havoc on family relationships already threatened by the effects of a serious psychiatric disorder. And who is to protect the advocate if, as could happen, actual violence broke out at or in the home?
We must not swing the pendulum all the way from ignoring the vulnerable and our rights to treating us as more important individuals than our family members, our doctors etc.
2. Access to records: Speaking of rights, a third party, the advocate, ought to have no more rights of access to a vulnerable person's medical records than does (a) the vulnerable person and (b) the significant other, if the former is incompetent. Those rights should depend upon the consent of the vulnerable person.
The proposed invasion of privacy here in sections 24 to 28 is as intolerable in a free society such as Canada as is the proposed right of entry into a vulnerable person's home. We suggest therefore that subsections 24(1) and 24(2) be retained and that subsection 24(3) be removed. The decision whether or not to see his or her clinical record should be that of the vulnerable person alone except when he or she is incompetent.
The present legal position, that even when we are not in their care only doctors' authorizations can enable us to see our own records, is quite unjustified and undermines precisely the partnership which the majority of psychiatric consumers is trying to build with health practitioners.
3. Incompetence: It seems clear, from the definition in section 2 of "vulnerable person," that whoever drafted it likely has never experienced a state of mental incompetence, for a key verb is missing. As one who was rather frequently and quite unpredictably incompetent during the 1980's, may I point out that the real tragedy is not so much in "expressing or acting on his or her wishes" as in formulating his or her wishes in the first place. Once seized upon by a brain whose neurons etc are whizzing around all wrong, those wishes later often turn out to have been against one's own best interests; for example, my wish in 1982, expressed to a lawyer, to have my husband of 11 years no longer be my next of kin; my unpremeditated wish to be dead during inexplicable, excruciating depressions and two out of six or seven attempts that almost cost me my life; the decision of Gallagher, of Fleming v Gallagher fame, to remain incompetent rather than try medical treatment again.
So, ladies and gentlemen, we are puzzled. I and others who have been similarly placed would ask you, how could an advocate or anyone else present a set of options to a person whose brain is temporarily or permanently out of commission? Should it happen to me in the future, I want the brain of the significant other, my husband, to be able to act and lawfully make decisions on my behalf. Love and care often win out in time. Discussions of rights and options have no chance.
We believe therefore that our best hope in the situation of incompetence remains a good working partnership between our significant others and our health practitioners. Those of us whose period of incompetence will pass, the majority, will return to play our lead role in that partnership in due course. After that perhaps an advocate whom we choose to see, or telephone if too disabled or too poor to travel, could be of service to those living alone with a serious disorder. We could all certainly do with a patient advocate service in each hospital, not just in the 10 provincial psychiatric hospitals.
4. Qualifications and training: A major weakness of this well-intentioned act remains its failure to attempt even the broadest definition of the prerequisites to becoming an advocate in the new sense. This is not something we vulnerable persons, our families and our health practitioners wish to leave to the Advocacy Commission or the appointments advisory committee.
In our opinion it is for us to suggest and for our legislators to set down to be seen clearly the criteria for such a sensitive and responsible position before the passing of the act. We are particularly concerned about the quality and length of training that will be available and required to assure us of a future advocate's ability to judge major complex issues; for example, whether a vulnerable person's open or disguised antagonism towards a family member or health practitioner is founded in reality or is a feature of a clinical disorder.
5. Appointments advisory committee: If an an appointments advisory committee is to be established it must represent us all. So far, section 15 makes no sure provision for representing those under 65 years of age who are temporarily or indefinitely incompetent due to psychiatric disability. This needs to be rectified.
If the majority of you remain convinced that all psychiatrically vulnerable persons need advocates, why not look to the present fairly effective system of patient advocates in the 10 provincial psychiatric hospitals as models. The proposed advocate could be located somewhere public and accessible, for example at the public hospital most central to the advocate's area, for part of the day. During that time vulnerable persons, or where they are incompetent their family member or significant other, could access that advocate by phone or in person.
A great deal of time, money and above all, anguish would be cut out if psychiatrically vulnerable people in the community were invited to make that contact when needed. Our greatest source of empowerment, after all, is in regaining self-motivation. If the family or society babies us, we could remain disempowered and hence vulnerable indefinitely.
6. Hospitalization: Time and the complexity of the issues, particularly as they relate to major psychiatric disorders, constrain me from commenting in detail on the Consent to Treatment Act. In my own case of severe bipolar affective disorder, I am in no doubt that without the emergency room in the local hospital I would be dead and that without the multifaceted, multidisciplinary approach of the nearest provincial psychiatric hospital I might have had less quality of life restored.
So, yes, I believe we need to retain involuntary hospitalization. For the first three years, at least, many of us have trouble believing there is something wrong with our brain. It is always somebody else's or even everyone else's brains that seem out of sync at the beginning of an illness. To prevent abuse we need to keep the very stringent laws that apply under the 1978 Mental Health Act and to ensure that they in turn are not abused.
7. Medication: We need to make sure too that once hospitalized it is impossible for the consumer to be overmedicated. A report in the late 1980s alleged that 25% of Ontario doctors overprescribe. If this is true it is intolerable. I suspect that some part of this overprescription may be going to the elderly and to consumers in non-specialist hospitals; hence the need for an act such as this.
If it is impossible to obtain the consent of a psychiatric consumer due to incapacity, I am not convinced that a medical emergency will ensue if anti-psychotic drugs are withheld for a limited time. Take my own case as an example. Apparently in April 1983, while resident in a provincial psychiatric facility, I went into a psychosis more profound than any I experienced before or since. The calendar had certainly moved on 12 days when I recovered. Apparently I refused all food, water and medication. The psychiatrist had the wisdom and courage not to prescribe intervention but to let nature take its course for a time.
When I came to, he told me that very day he had had my closest family members sign a form authorizing electroconvulsive therapy and that he was on the point of sending me to the facility's infirmary for forced feeding, as starvation and dehydration could not have continued for much longer. Obviously, then, there must be a limit at which point a doctor must have the right, with the consent of significant others if possible, if not, then without consent, to intervene to save a patient's life or sanity, for as Dr Bessie Borwein remarked in this room on March 10, "The freedom to be insane is an illusory freedom." I would add, ditto the freedom to be dead.
8. Physical illness: Bearing this in mind, I must say that with regard to purely physical illness such as strokes and heart attacks and to the results of accidents or suicide attempts, I believe the health practitioner is too much restricted by clauses 22(1)(b) and (c). I think that the phrase, "likely to suffer serious bodily harm in twelve hours," clause 22(1)(b), should be amended to, "could suffer further bodily harm within forty-eight hours," and clause 22(1)(c) should be brought into line with that. I do not know about you, but I would rather take the risk of intervention than that of the health practitioner being in error regarding the time when "serious bodily harm" might occur.
Last, if I am ever again incapable for whatever reason, I want to be free of all that is superfluous to recovery. I do not want advocates worrying me, or for example the elderly incapable, or my family or my doctors. We are, as I said, a partnership, though one or two earlier health practitioners I had were unwilling and/or unable to play their part in that way.
9. Forms: Please let me know if, when and in what form this legislation is passed so that I can speedily take the necessary legal action to preserve this partnership, and please make the new form big enough. There is not space on the present form 44 to set down either the name and address of your second substitute, to borrow a phrase from soccer, or the details of the treatment you do or do not wish to be given.
10. Thanks: We would like to express our gratitude to the present government for bringing forward this proposed legislation, to Mr Norm Sterling for his invaluable work on Bills 7 and 8 and to the previous government for commissioning the Graham report, 1988. We would also like to thank our MPP, Brad Ward, his Queen's Park office and his constituency office for all its help in this matter. Finally, we would like to thank you all for listening.
Mrs Sullivan: Thank you very much, Mrs Campbell. I know that you have been an active participant in the hearings, following very much and very closely the issues that have come before the committee and that have been a matter of consideration. I know from other conversations you have had not only with me but with other members of the committee that you are very familiar with the bills that are here. I think you have presented a very poignant and articulate brief to us.
I think one of the things that really struck me about your brief, and that has come home from many of the briefs of the health care professionals, relates to the balance of statutory rights, civil rights, versus the balance that has to be given to the right to health care, which in fact preserves other rights. If you have underlined anything for us today, that issue has come very much forward.
I was also taken with your comments relating to training, and I think that is one of the things that we want to press the government for further information on. I do not have any questions. I liked your brief.
Mr J. Wilson: I too thought it was an extremely articulate and well-presented brief. There is very little in it that I would question. I gather, just for clarification, that you would prefer to see the current patient advocate system perhaps expanded and that advocates really should be on call when needed. I guess the question that raises in my mind is, when individuals are in a psychotic state, are they from time to time aware enough to call an advocate if they need one?
Mrs Campbell: They might be, but I think the more likely person to speak to would be the family member or the health practitioner. These are really the only two people you feel you want around you because you want out of that condition as quickly as possible. All my relationships with patient advocates have been while out of hospital. At no time when I was in was I ruminating on things like rights, nor were they removed from me to such an extent that I felt I had to.
1510
Mr B. Ward: I would like to thank you as well for your excellent presentation. I think, when there are not very many questions from the parties represented on the committee, that you have had a very thorough presentation. What is important to recognize is you based your presentation not only on your research that you have done into this area but on your own life experience as well, and I think that type of information is invaluable for this committee to consider as the legislation is discussed now and in the future.
I do have one question, though. On page 4, section 5, appointments to the advisory committee, you mentioned that there is an apparent omission in the makeup of the proposed appointments advisory committee. Marjory, I was wondering if you had given any thought to how you would propose to represent those who may be incompetent on this committee.
Mr Campbell: I notice that the grouping we fall into is the grouping with both psychiatric and emotional illness involved. I think that Rick and the others would most likely agree with me if I said that we who have been psychiatric patients have great experience of emotional problems because that kind of illness causes emotional problems. I would suggest that it would be better to have a representative from an organization which oversaw the needs and requirements of psychiatric patients rather than to have a person from an organization that did not deal with emotional illness, because normally they would not be prone to psychosis and therefore would not have any members who could comment on that state of incompetence.
Ms Carter: Just a quick comment and a question: First of all, you said that we left the training and who was to be advocates and so on vague and you wanted that set out definitely. We deliberately left that vague because we wanted the people who would be on the Advocacy Commission and who would be chosen by this group that is set up in section 15 of the bill to be speaking from firsthand knowledge of what they wanted and so on. So that was deliberate; that was not just fuzzy thinking.
The other thing is, you see the advocate as a third person.
Mrs Campbell: Oh, yes.
Ms Carter: You see a vulnerable person who has a caring spouse and care givers and so on. What about the person to whom the advocate is a second person? That is really what is behind what we are doing. I mean the impetus behind this act was what happened at Cedar Glen, where somebody who was totally unprotected was ill-treated and died. What are your thoughts on that?
Mrs Campbell: I tried to make it clear in the brief that we are completely behind the idea of supporting advocates for persons who are on their own. In that connection, all disabilities, not just psychiatric, but all persons dealing with anything that could make them vulnerable on their own would probably come to be included. But why I thought they would not come to be regarded as really close to you is because my understanding at another hearing was that there were going to be only 150 for the whole province. I think the need is so great that we could use 150 in Metro Toronto.
Ms Carter: But of course there will be volunteers, some of whom are already in the field, and there will probably be more.
Mrs Campbell: Additionally to the 150.
Ms Carter: But I think we see the act as principally applying to and being for those people who do not have caring others. We are not seeing them as somebody who butts in on a situation which is already viable.
The Chair: Mrs Campbell, Mr Campbell, Mr Dafoe, on behalf of the committee, I would like to thank you for taking the time out this afternoon and giving us your presentation.
I would like to call forward our next presenters, the Council on Aging for Lanark, Leeds and Grenville Counties.
Mr J. Wilson: Just in the interim, perhaps we could ask, then, if the government's intention is that this system not interfere in family relationships and in support structures that are existing, why is the legislation written so that the advocates are a mandatory part of the new system? Perhaps one of the parliamentary assistants would like to respond to that.
The Chair: Is there a response?
Mr Malkowski: I was not watching. What was the question? Can you say that again, please?
Mr J. Wilson: The point has been made time and time again by some of the government members that the intent of the legislation is not to interfere in vulnerable persons' lives where family structures already exist and support structures already exist, that advocates really are not intended to interfere in those existing structures. So why is the legislation formed so that it makes advocates a mandatory part of the process? The previous presenter suggested that perhaps advocates really should just be on call when vulnerable adults require them, whereas I read there is a mandatory requirement for advocates in parts of the legislation.
Mr Malkowski: Can I refer to legal counsel to respond to your question?
Mr J. Wilson: Sure.
Ms Spinks: Are you referring to the rights advice function under Bills 108 and 109, which is a mandatory intervention?
Mr J. Wilson: It is also mandatory when you go to guardianship and a number of other aspects.
Ms Spinks: Right, but I think you are referring to the mandatory rights advice requirements under the other two bills, because there is nothing mandatory about advocacy under Bill 74. I think that, to be brief, the purpose of the rights advice function is to ensure that there is an independent, informed party providing that narrow description of what an individual's rights are. I think you probably agree it would not be appropriate to sort of have a family member expected to perform that function in a medical setting.
Mr J. Wilson: In that case, then, it is simply a rights advisory function? It is not what we hear from witnesses as the full meaning of advocacy?
Ms Spinks: I do not want to minimize the role of an advocate in providing services to an individual under Bill 74 or in doing systemic advocacy under Bill 74, but with respect to the other two bills, I think that if one looks at the sections that describe what an advocate is supposed to do, it clearly is explaining to him the effect of what has happened, which is generally the finding of incapacity and the fact that they have a right to appeal.
ADVISORY COUNCIL ON AGING FOR LANARK, LEEDS AND GRENVILLE COUNTIES
The Chair: Good afternoon. Just a reminder that you will be given a half-hour for your presentation. The committee would appreciate it if you keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you are comfortable, could you please identify yourself for the record and then proceed.
Ms Diakun-Thibault: I shall try to do my best. My name is Nadia Diakun-Thibault. I serve as the executive director for the Advisory Council on Aging for Lanark, Leeds and Grenville Counties.
"If a man will begin with certainties, he shall end in doubts; but if he will be content to begin with doubts, he shall end in certainties." Bacon's philosophical caveat is worth bearing in mind. Legislation should not be written in isolation from reality. What may appear to be reasonable today, in time, after careful consideration, will no longer hold the promise of solution.
On advocacy, there is no doubt that there is and always will be a segment of the population that will have need of advocates, whether informal of codified. But which definition of advocacy and advocate should we use to guide us in interpreting Bill 74?
What is understood by "vulnerable person" for the purposes of the act is defined, albeit in part. We submit that everyone, members of the committee included, at some point in time, for however brief it may be, will be vulnerable. But if we apply stricter parameters to the definition and argue that those vulnerable persons whom we wish to protect are those who will have continued difficulty in expressing their wishes and will have a disadvantage for longer stretches of time, then there is certainly an understanding of durability of situation.
As for the definitions of "advocacy" and "advocate," referring to a standard legal dictionary will give one interpretation. But law dictionaries are not generally found on the shelves of an average Canadian home. The understanding and interpretation is rather simple and might contain words like: "representative; someone who works for the public good and general welfare; bring issues before the government on behalf of seniors," words which fall in the ambit of a journalistic definition.
This committee has heard representations from many organizations which would not consider themselves lobbyists for change, but certainly advocates on issues that concern their constituencies.
Ontario jurisprudence does not recognize advocacy as a charitable purpose. It is seen as a political activity that non-profit charitable agencies may not engage in. What this bill proposes in effect would or should halt any further letters patent granted, and should or would prompt the review of many letters patent already registered. The former is probable; the latter would be an imprudent public relations exercise for politicians. Is it truly possible that the Attorney General would run around and strip religious institutions and the United Way of their charitable status?
1520
By virtue of the democratic nature of our society, we assemble, join forces and become proactive. What one generation would have labelled "civic duty," another now calls "empowerment." Empowerment somehow suggests that vast numbers of Canadians have become disfranchised, non-citizens, an unprotected body politic without any hope or means of exercising rights protected not only by the charter but by common-law heritage and practice.
Bill 74 sanctions activities called "advocacy services to help vulnerable persons to bring about structural changes in the political, legal, social, economic and institutional levels." Perhaps legislators view this passage differently than the layman citizen. But is this not a contradiction of principles and philosophies? Is it possible for the government to bring about legislation that will codify civic duty and responsibility, that will effect economic change, that will virtually regulate our individual implicit responsibilities to community and society as a whole?
It is difficult to change social mores; it is difficult to bring about enlightenment in society; it is difficult to educate everyone and ensure universal broad-mindedness, if you will.
Over the years our attitudes and behaviour towards vulnerable people have changed. We no longer believe that physical incapacities diminish the self-worth and potential contributions of any human being. We no longer believe that physical barriers cannot be overcome; technology has disproved that. And we no longer hold pity for vulnerable people, but rather strive to adjust the physical world to ensure mobility and integration of people who may need assistance.
The proposed legislation has many flaws:
1. It sets no limits to the powers of advocates and to the term of application on a case.
2. It takes upon itself the herculean task of taking cultural, religious and other traditions into account as if it were child's play.
3. It paves the way for potentially uncontrolled, unlicensed and unaccountable advocacy services.
4. It protects advocates from damages litigation.
5. It contradicts the rights of non-profit charitable agencies beyond the presently accepted scope.
6. It ensures the potential for abuse by overzealous individuals by not limiting powers of entry and penalizing anyone who may deny entry by presuming guilt. What really does constitute "reasonable grounds"? Will we have to wait for the courts to decide, should this legislation come into effect?
Although the spirit of the legislation may be laudable, needs, real or perceived, do not necessarily justify the establishment of unlicensed advocates.
"Seniors who appear most vulnerable to consumer fraud are those who are frail, who suffer from sensory loss and possible intellectual impairment, who are socially isolated, who have minimal education and deficient literacy and communication skills and who are in need of services to maintain their independence in the community," according to the National Advisory Council on Aging.
The council, in a publication entitled Consumer Fraud and Seniors, published in March 1991, listed a number of proposed factors that make certain seniors more vulnerable than others: (1) a lack of consumer information; (2) diminished sensory acuity and slower rate of assimilating information; (3) a lack of wariness in commercial relations; (4) social isolation; (5) a lack of self-confidence, and (6) a greater need for certain services and products.
Studies have shown that "in comparison to younger adults, elderly consumers tend to be less aware of unethical practices, more tolerant of substandard goods and services and less likely to pursue a complaint even when it is clearly justified."
If we cannot adequately protect consumers, regardless of age, from fraud through existing legislation, what assurance do we have that we will be able to protect vulnerable persons from unscrupulous, overzealous persons who would abuse their positions as advocates? None.
On consent to treatment: We argue that even a university-educated person can have more than ample difficulty in determining the correctness of treatment. There are graduated levels of understanding.
Bill 109, the proposed legislation on consent to treatment, has defects primarily of definition and application; "capacity" and "incapacity" are not adequately defined.
The Fram committee defined capacity in the following terms:
"The ability to make an informed choice is the essence of mental capacity. Mental incapacity means the incapacity to understand information relevant to making a decision or the inability to appreciate the consequences of a decision or lack of a decision.
"Mental incapacity must be defined so that persons who are capable of making a choice or decision will not have these choices or decisions interfered with, even if most members of the community consider them eccentric or even bizarre. `Capable' would include the ability to make choices or appreciate consequences with the assistance of others. We receive information from explanation and thus we rely on explanation for understanding. Therefore, when a person accepts the assistance of another and is able to to understand a concept that would not be understood, the person is capable..."
The committee recommends:
"Mental incapacity should be defined so that legislation to provide substitute decision-making for persons who are incapable cannot be used to interfere with the freedom of action of persons who know what they are doing and appreciate the consequences of their acts, or can do so with assistance."
It is presumed that the informed decision will be made by the advocate, according to these bills, and it is his informed decision, whatever that means, that should be unquestioned.
Let's suppose that a person is brought into a hospital with a severe upper respiratory infection and it is determined that the person has pneumonia. That person is deemed vulnerable through the process and incapable of granting informed consent to treatment. The physician follows the steps outlined in Bill 109. An advocate is called in. All the prescribed elements have been followed and treatment is administered, possibly a sulpha drug to fight the infection and aspirin for the fever. What if that incapable person is allergic to aspirin, allergic to sulpha drugs and asthmatic? What medical harm would be done? What if any of you were that person?
On substitute decisions: This bill should give everyone pause to consider relocation to another province. Although it is primarily a bill concerned with the management of property, it has elements that give rise to even greater concern.
They are: section 17, which does not permit family or a common-law partner to be appointed statutory guardian if there is also an application by the attorney under a continuing power of attorney; and section 24, which excludes anyone who is not a resident of Ontario. Many incapable or vulnerable people -- people with dementia in nursing homes, for example -- may have family who reside in other provinces. For that matter, many families live on both sides of provincial borders -- and since I have lived close to Ottawa, we know this is a fact -- and there is no justification that such family members should not be allowed to act as statutory guardians of property, for whatever reason.
Section 31 under "Powers of Guardian": The guardian can do anything in respect to property that the person could do if capable except make a will. Apart from the expected managerial duties that a guardian of property would have, there are other powers, such as making charitable donations, provided that it can be proved that the person would have made a similar contribution and has made such contributions in the past. If wishes for charitable donations are made in a will then there is no problem. But there is a problem if there is no will. Then it is up to the guardian to make such decisions. Donations to bogus charities could be made without notice, and once they are noticed it might be too late. There is certainly potential for abuse here and tighter guidelines must be in place.
Section 56 grants guardians full custodial care and it gives them the power to determine the living arrangements. What if the person is cognitively impaired, such as an Alzheimer person? The guardian could insist that the person remain in the home and not be placed in a facility better suited for that person's care. Being home alone for a cognitively impaired person is both dangerous and imprudent. I know this for a fact because my mother has Alzheimer's disease.
Imagine the worst-possible-case scenario: It is your child or your aging parent who has been left because some demise has befallen you and there are no relatives in Ontario to care for your loved one. Would you entrust to a stranger the right of custodial care? Probably not.
Acting in good faith in making decisions on behalf of another human being is a vast responsibility. If the actions result in serious bodily harm, financial damages, further medical problems, even death, why should the advocates and the commission be absolved?
There can be no a priori absolution for those acting under the proposed intentions and spirit of these bills. Although there may be others who would argue in favour of the bills as drafted, perhaps much more eloquently than I, even so, consideration to extensive amendments must be given. Thomas Jefferson warned that, "No more good must be attempted than the people can bear." We submit that the people will not be be able to bear the good this legislation purports to do.
Thank you very much. I apologize for any errors and omissions or typographical errors.
1530
The Chair: Thank you. Questions and comments?
Mrs Sullivan: How much time do we have?
The Chair: About four minutes each.
Mrs Sullivan: Four minutes? Okay. I will be quick. I appreciate -- and I think all members of the committee do -- your appendix, which includes specific reference to the bill. That has taken you a lot of time to put together, and --
Ms Diakun-Thibault: May I just say that those are working notes prepared by an advocacy committee or, I should say, a committee charged with looking at these bills, as well as whatever assistance I could provide for them. Those are just draft notes. We would be happy to submit our proposed amendments also.
Mrs Sullivan: Great. I think that even the draft notes will be useful to us as each of the caucuses goes about preparing its amendments and the government prepares its amendments. I think that is useful.
I was very interested in many of your comments relating to advocacy. One of the things that is of some concern is the lack of definition of the training, the skills, the competence, the scope of advocacy practices, if you like, the discipline associated with advocacy. I wondered if you wanted to comment on that.
Ms Diakun-Thibault: I certainly would like to. As far as we can see, advocacy is not a discipline at this time. Health practitioners are a discipline. Legal advisers, solicitors are a discipline. Even accountants are a discipline. If this legislation were to see some life in the future, then certainly we must consider that advocates, too, should be a discipline and should be regulated and licensed and should be accountable to some body, whether professional or legal.
Mr Poirier: Before, while we were discussing Ms Sullivan's proposal, or just before we started to, I talked with Ms Diakun-Thibault and told her that, yes, she may be the second-last person to come forward, but I think her presentation -- I told her it was going to be this way, but she confirmed it. The quality of what you did and the type of suggestions that you have, I much appreciated your coming forward with that. Please give our regards to the people who sat down with you to propose this.
This is going to be very helpful for us. It confirms a lot of the fears that we also have, and it goes to show you -- we were saying that tongue-in-cheek, but I am saying it seriously now -- thank God, even if it is the last day, that you came forward with this. It is most important. Thank you and congratulations.
Ms Diakun-Thibault: Thank you, Mr Poirier.
Mr Villeneuve: Thank you, Ms Diakun-Thibault. Coming from eastern Ontario, what else would you expect?
Mr Poirier: There it is. Right.
Mr Villeneuve: It is natural.
Mr Poirier: Yes, humble as we are, eh?
Ms Diakun-Thibault: Mr Villeneuve is my MPP.
Mr Poirier: Our sympathies, in that case.
Ms Diakun-Thibault: We share similar sentiments, I suppose.
Mr Villeneuve: I am interested in your comments on section 17, where, under continuing power of attorney, a family member or a spouse or a common-law arrangement would be disallowed. Could you comment a little further on that particular area?
Ms Diakun-Thibault: My reading is that they would be disallowed for application, and they should be allowed to apply. Whether it would be prudent that they be granted is certainly not a matter that I could comment on today. I certainly would like to take it back to our committee and have them look at it a little more closely.
Mr Villeneuve: I have attempted to address problems faced by a certain family in Grenville county with a very, very sad situation with children's aid. I will not go into it any more deeply than that. It was a rather sad case and, whether children's aid was right or wrong, it was terrible. As it turned out, children's aid appeared to have been wrong in their assumption of the reasons they took a child away from its parents. However, in this particular case, I think we ran into some very overzealous people. I see this particular legislation as opening the door for people who would tend to be overzealous. If we designate a discipline for them, it is still going to be difficult to deal with people who are overzealous in their application of whatever power they have, if indeed advocacy becomes a discipline. Could you comment to some degree on that, because in a rural area close to the Ontario-Quebec border that you touched on, I would think in most cases there would be a relative. It looks like it may be difficult to bring in a relative under certain conditions, particularly if legal matters are at stake. Maybe you could comment on that one a bit.
Ms Diakun-Thibault: I feel a bit at a disadvantage because I am not a lawyer by training, even though I perhaps have a penchant for legal things. I would like to state that we believe very firmly that if this were a discipline, one with certain guidelines, one with rules and regulations, one which would be accountable, one which would allow the person who may have a grievance against the advocate to litigate, to literally sue the advocate for malpractice the way you can sue a lawyer or sue a doctor or your accountant or anyone who embezzles and is fraudulent -- granted it may be very difficult to assure that everything is going to be perfect in a very imperfect world, but none the less -- there is some measure of recourse and common sense being applied in the act. As we read the act today, there is none of that.
Mr Villeneuve: In your opinion, Nadia, would we be better without legislation than with what we are bringing forth now?
Ms Diakun-Thibault: I would like to say that we would be much better without this particular piece of legislation as it is drafted. Perhaps we should look at whether there is clear justification, whether numbers warrant and whether there is an overriding and compelling argument to support the establishment of an advocacy discipline. If there is not, then we need no legislation, but if there is, then we do. But this legislation must not be in the form that it sits before the House today.
Mr Villeneuve: By the way, congratulations on being the new executive director of the Lanark-Leeds-Grenville counties' advisory council on aging.
Ms Diakun-Thibault: Thank you.
Mr Wessenger: Thank you for your presentation. I would like to make one comment with respect to your brief just to clarify the position of an advocate under Bill 109; that is, an advocate does not make decisions under Bill 109. An advocate's role is purely as a rights adviser to advise a person with respect to the question of incapacity.
Ms Diakun-Thibault: I stand corrected.
Mr Winninger: In response to a couple of submissions you make in regard to Bill 108, and in particular section 17 and section 24, it is quite clear from the wording of section 17 that if there is an application by an attorney under a continuing power of attorney for guardianship, another member of the family cannot apply at the same time. The reason for that, in my view, is that you want to have a guardian who is as authentic as possible. If you can actually have the person who has been appointed by the individual who lacks incapacity to be the attorney, then that will most closely accord with the donor's wishes.
On the other hand, that attorney may be a family member to start with, and in my experience often is, so what you would have is a situation where the existing attorney applies to become the guardian, and he or she could quite easily be a member of the family, and at the same time someone else could not apply. Let's say, for example, that the attorney under a continuing power of attorney applied to the court to be appointed a guardian and was found unfit to be the guardian. That would not preclude a spouse or a partner or a child or a parent then coming forward and saying, "Look, that person wasn't suitable but perhaps I'd make a more suitable candidate for attorney." I wonder if you would agree that the wording permits that interpretation.
Ms Diakun-Thibault: Again, I feel very much at a disadvantage because we are now delving into a realm in which I am not personally capable, if you will, and have not the education to address that in a very legal fashion. I think it does not necessarily make it as clear as you perhaps explained it now.
Mr Winninger: I want to assure you that we are looking at the issue that has been raised by Mr Poirier earlier of families that have relatives outside the province and how relatives outside the province might be allowed to become guardians, looking at possible models or mechanisms to make that work, particularly in the eastern townships where families tend to be distributed across the border.
1540
Mr Poirier: Ontario's eastern townships.
Mr Winninger: Ontario's eastern townships.
Ms Diakun-Thibault: That is an interesting title.
Mr Villeneuve: It is a new terminology.
Mr Poirier: The geographer in me is being tortured now.
The Chair: Order, please.
Ms Diakun-Thibault, on behalf of this committee I would like to thank you for taking the time out this afternoon to give us your presentation.
Ms Diakun-Thibault: Thank you very much. In retrospect, I guess I should be happy I did not become a moot point. I would like to say that personally I certainly welcomed hearing there was a motion, albeit defeated.
The Chair: We are waiting for our next presenter. He will be back shortly. Mr Poirier, did you have something you wanted to raise?
Mr Poirier: Yes. I received on March 23 a letter from somebody who came forward some time ago, as you may recall, Dr John Cleghorn, from the Clarke Institute of Psychiatry. After hearing his presentation, I had brought up to him the fact, after hearing a lot of people, that a lot of people had some strong objections to the way they felt they had been treated either at the Clarke or elsewhere. I got the following letter from Dr Cleghorn. I think there was a copy sent to the parliamentary assistant, the member for York East, and also to Mr Sterling from the Tory caucus. For the record, if I may, I would like to read it and then we can discuss this afterwards.
The Chair: Sure.
Mr Poirier: It is dated March 17:
"Dear Mr Poirier
"Following my testimony to the standing committee on the administration of justice on Tuesday, March 10, 1992, I remained puzzled by the complaints made by patients that you mentioned that were so disturbing. Puzzled because these people do not seem to behave like other aggrieved persons.
"Psychiatrists in psychiatric institutions are not flooded with allegations of wrongdoing. So far as I know, there is no great increase in complaints about psychiatrists lodged with the College of Physicians and Surgeons. The patients do not make direct complaints to us in our clinical settings, although there is in fact plenty of opportunity for them to criticize the way in which they are being treated, and to enter into dialogue and to negotiate alterations in the way in which they are treated. Undoubtedly, some abuse occurs but I believe it is occasional and sporadic.
"A small number of patients, unfortunately, become delusional about their doctors and other caretakers and develop persecutory ideas about what has happened to them that are in fact unrealistic. Some of these people are coherent and well-organized so that it would be very difficult to distinguish between them and those with well-grounded complaints.
"May I suggest that hearings into these allegations be held and that the professionals named by patients who feel they have been wronged be requested to come to the hearings to shed light on what has actually transpired. I would be pleased to use my influence with my colleagues to ensure that they cooperate.
"Please let me know if I can do anything to help resolve these issues.
"I copy this letter to Mr Malkowski and Mr Sterling since they are also intensely interested in this problem and you certainly have my permission to share this letter with other members of the standing committee on administration of justice.
"Yours sincerely, John M. Cleghorn, MD, Professor of psychiatry; Head, schizophrenia research program, Clarke Institute."
You will recall, and I think all of us were kind of shocked, what some people said when they came forward, especially those who were active members of survivors' groups, and the presentation of Dr Cleghorn --
[Interruption]
The Chair: Order. This is an extension of the House. Could you please leave the room. Thank you. Just a reminder, this is an extension of the House and no comments will be tolerated from the people visiting the committee.
Mr Poirier: Obviously with such a diversity of opinions, strong opinions one way or the other, as you witnessed, it is very disconcerting. The allegations of some of these members of the survivors' groups were very disturbing. Then I see Dr Cleghorn's position, and I am sure other psychiatrists feel this way. This is very much a black-and-white situation here. I am very disturbed. I am glad Dr Cleghorn wrote this and is offering to help us look into this.
I do not know how you feel, and I do not want to predispose myself one way or the other on whichever side, but from the allegations we heard from people who are members of psychiatric survivor groups, whoever is sponsoring these groups -- and we know some of their members and I do not feel like mentioning some groups right now -- when you hear this side of the story, I think it is a matter for us to look into. If we believe in advocacy, in the principle of -- something is wrong somewhere in communications.
When I first read this letter, I said to myself, is there any way the members of this committee can help improve and create a forum for people to come forward and for the psychiatrists and members of the profession like Dr Cleghorn and others, whether we are talking about the Clarke Institute or wherever else, to help bring them closer? From my presence here and from what is claimed in here and from what the survivors have claimed, there seems to be a hell of a problem with dialogue between givers of health services and those on the receiving end.
I would like to put a motion forward that this committee could use at least a 12-hour period to look into ways to bring forward the two sides in this debate and see how we, as members of this House, together can look at how we can resolve what I feel is a very serious situation and a very disturbing situation. I do not know if my colleagues want to respond, but I would invite their response to this formal motion.
The Chair: Mr Poirier moves that the standing committee on administration of justice accept the suggestion brought forward by Dr John Cleghorn of the Clarke Institute that hearings into the allegations of abuse of patients by some psychiatrists be held so that people on both sides of the story could come forward and testify in front of this committee.
Mr Morrow: Mr Poirier, I will be supporting your motion. I do believe you are looking for a section 123, a 12-hour debate.
Mr Poirier: Yes.
Mr Morrow: I will be supporting that. Not only will I be supporting that, I will be urging my fellow caucus members to support that. I think we have heard issues on both sides of this. There obviously is a problem here. If there is anything we can do as legislators to try and resolve this, I think it is incumbent upon us to do that.
The Chair: Just a reminder to the committee that we could do it under section 106. It does not have to go under section 123.
Mr Winninger: I certainly support what my colleague Mr Morrow had to say, with this caveat: I am a little concerned with the way in which certain patients have been hindered, if I might use that word, from coming forward to testify before this committee. It would concern me if the patients who were willing to speak well of the facilities in which they found themselves were allowed to come while others, due to medical opinion, were suddenly denied that privilege. That is one concern. I think we have to be consistent in our approach to the manner in which we elicit evidence from patients.
Also important is that I think we have to come to terms with the question of costs again, because if there are executive directors of facilities or medical directors who decline to bring people here at their own expense, then we have to be prepared, if we are going to have a meaningful discussion as to the issues raised in Dr Cleghorn's letter, to pay the cost to bring people here with or without their security people and their attendants.
Mr Malkowski: Could we perhaps recess for 10 minutes to discuss that and consider the motion?
The Chair: There is a call for a 10-minute recess. We will resume at 3:59.
The committee recessed at 1550.
1603
The Chair: I call the committee back to order.
Mr Poirier: After a very fruitful 10-minute break, I think there was unanimous consent given that I could bring back my resolution and add the following to it, that I want to make sure that the motion that I made did specifically state that it was part of the ongoing investigation or the work of this committee, the justice committee, to make sure that if we proceed with this mandate, as is my request in the motion, it be part of the overall mandate to study the bills we have in front of us, because the content of this letter is emanating out of presentations that were made by people on both sides of the fence in this issue. I do not have the exact words, but I am sure the clerk will add the necessary wording to make sure this resolution is in order for us to be able to consider it.
Furthermore, I would like to state that I think we should wait a while before voting on this motion. We discussed during the break and I think we will have to look into legal counsel's opinion pertaining to the nature of how we can look into these allegations and how we can proceed with the type of request Dr Cleghorn has suggested, to look into these allegations that some of the patients, or former patients, have brought forward. With the committee's indulgence, I ask for its support to accept the principle of this motion. We can consult with legal counsel. After we have received advice from legal counsel as to how we can go about doing this, then we can vote at a particular time on this to find out how and where we proceed with this further work of our own committee.
Mrs Sullivan: I think the content and intent of the motion that Mr Poirier has put forward are of some importance in terms of dealing with the credibility of some testimony before the committee and, as well, the determination of the extent of need evidenced to the committee in relation to the bills put forward.
The concerns I have and the reasons I will be supporting the amendments to Mr Poirier's motion relate to the fact that we know there is an OPP investigation now occurring into similar charges of abuse at Oak Ridge. That investigation could or could not, may or may not, lead to criminal charges. There is a question as to whether the kind of setting of the record on the table before this committee may indeed be beyond the mandate. This could be a different kind of investigation beyond the mandate of this committee.
I am concerned as well about the nature of the defence, I suppose, that would be necessary for the health care professionals to put before the committee, including what may be access to clinical or medical records of people who indicated a particular concern. It would probably, in that instance, behoove the committee to ensure that there was appropriate consent for the release of those records and some question relating to the confidentiality provisions, whether under the Public Hospitals Act or the Mental Health Act, and the concurrence of the patients themselves.
For those reasons, I think the rational approach is indeed to have legal counsel in relation to this motion. Clearly the issues that are of concern are broader than the specifics included in the motion. I think that the committee should approach the content of the motion and the issues associated with it with full advice of counsel and that the motion should be put over until the next session of the committee.
Mr J. Wilson: I am supportive of the motion, as I understand it, but I would not want to see this get too complicated, as I think Mrs Sullivan is suggesting. My understanding, and please correct me if I am wrong, Mr Chairman, is that there were allegations made and doctors named and the doctors themselves, through the chief medical officer of the Clarke Institute, would like the opportunity to explain their side of the story. I do not think it gets much more complicated than that. The concern I would have in their explaining their side of the story is shared with Mrs Sullivan, and that is confidentiality. That may be overcome by doing a one-day in camera session or whatever advice the Chair and counsel may have on that.
Finally, I have no qualms whatsoever with deferring the vote on this motion until the next sitting of the committee, but I do not know when the next sitting of the committee is, and since our subcommittee meetings have been cancelled, we do not know when amendments are coming, we do not know when clause-by-clause is supposed to be. The phone calls will start coming into our offices later this week asking us: "Are we left in limbo? When are we supposed to meet again?" All we know is that the House is coming back on April 6. I think it is imperative upon the government right now to clear up the confusion over when the committee will sit again in the process.
1610
Mr Wessenger: I would just like to concur in the recommendation that the matter be deferred, because I do think we need the advice of legal counsel. I have several concerns about whether some of the suggestions within the motion are appropriate to be dealt with. I think it is important that we have the advice as to all the ramifications.
Mr Morrow: Because I spoke on Mr Poirier's motion in the first place, Mr Poirier, I will be supporting what is I suppose an amendment to your first motion and I will also be supporting deferring to legal counsel.
The Chair: Do we have unanimous consent to defer this to legal counsel for advice?
Agreed to.
The Chair: Anything further before we proceed to our next witness?
Mrs Sullivan: Mr Chairman, I would at some point appreciate a clarification of the next stage in the process in consideration of these bills. My understanding is that the steering committee has left the committee in a position where the next step now is to proceed to clause-by-clause. Even that would give an indication that there would be no opportunity for amendment in a consolidated fashion, and perhaps after the next witness, I would like to have a fuller discussion of this issue.
The Chair: Thank you, Mrs Sullivan. It sounds appropriate.
SUE GOODWIN
The Chair: Good afternoon. Our next witness is Sue Goodwin. Just a reminder that you will be allowed a half-hour for your presentation. The committee would appreciate it if you keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you are comfortable, could you please identify yourself for the record and then proceed.
Ms Goodwin: Good afternoon. My name is Sue Goodwin. I greatly appreciate this opportunity to speak to you about legislation I cannot wait to see proclaimed in this province. Again, my name is Sue Goodwin. I am a 29-year-old psychiatric survivor. I consider myself qualified to speak to you as a consumer of mental health services in Toronto for the last decade.
And I am a survivor. I have survived three psychiatric hospitalizations, inappropriate and toxic drug therapy, mislabelling and other intrusive attempts to remove permanently, I guess, my sense of humour. But I am very glad I survived to see legislation like Bill 74 being proposed. I am only going to speak to this bill today and not the others, because I agree with many of the other deputations you have heard, and that is that the consent to treatment and substitute decisions bills should be delayed a couple of years after Bill 74 is implemented and after it goes into effect.
Like other survivors in this province, I owe a heartfelt thank you to the 35 progressive organizations of the Ontario Advocacy Coalition which lobbied and worked so hard for the creation of a publicly funded advocacy system to defend the rights of vulnerable people. Also, my gratitude goes out to the forward-thinking legislators of the current NDP administration, who have recognized that it is about time to end the abuses in our psychiatric treatment system and finally give us, the vulnerable psychiatric patients and survivors, some basic human rights. I applaud the creation of an Advocacy Commission comprised of people like me, people other patients can talk to without being intimidated or coerced, people who have been there.
On this point, I would strongly recommend one change to clause 36(b) of Bill 74. I would ask you to amend it to read, "establishing minimum qualifications and performance standards for advocates," rather than "educational standards," as it now reads. My rationale is this: Since when does formal education become excellent preparation for effective advocacy in a totally foreign environment, like a psychiatric hospital or a boarding home? I think my own expertise and that of other survivors stems directly from my experiences as a vulnerable person in these chambers of horror, rather than from my educational degrees.
Simply put, I am here to urge all of you to speed the proclamation of Bill 74 as much as possible. Like others who have spoken to you, I would ask that Bill 74 be implemented two years prior to the other bills being enacted. I agree with many of the changes to Bill 74 suggested by the Ontario Advocacy Coalition, but I would rather see this important legislation passed in this current session of the House than see it perfected by much redrafting and lost to eternity.
I am also here to counter some of the previous testimony I have read in preliminary transcripts of this committee's February hearings and earlier this month, testimony from people like Dr Cleghorn of the Clarke, Dr Fleming from Penetanguishene, testimony from those I call "the forces of darkness," these psychiatrists, other medical and family-type powers that be who would love to see this proposed legislation go in the garbage so there would not be these irritating challenges to their powers to decide who gets what treatment, when, where and how: irritants like basic human rights for us; an irritant like an advocate helping me or any other vulnerable person to determine and enforce my right to refuse to be forced to undergo brain-disabling shock treatments or my right to refuse new and untested drugs that give me an equivalent to a chemical lobotomy; my right to be aware of and seek less intrusive psychiatric help in the community instead of being locked up in a cold mental hospital, pumped full of chemicals, talking to a psychiatrist for about four minutes a week, and other blows to my life and my self-esteem and my livelihood.
While I have a great deal to praise about Bill 74, I do have a few strong suggestions. Clause 7(1)(f) of this legislation directs the commission to provide advocacy services that take into account religion, culture and traditions of the vulnerable person. This committee should also ask that an addendum to this section be added about gender and sexual preference. Statistics show us that the majority of psychiatric patients are women. We need special protection in these institutions and there should be an emphasis on women as well as minority advocates.
One of the things I would hope this committee would be able to amend in the legislation is the enforcement that is set out in various sections. The enforcement should be done conscientiously. A $5,000 fine for whomever is contravening the law is great, but only if the act is enforced, and I would like to see it enforced.
Thank you again for the opportunity to speak to you and I would be happy to answer any questions you may have.
Mr Mancini: Thank you for your brief, Susan. You have asked the committee to proceed speedily with Bill 74 but to delay the other bills. Is there any reason why you want the other bills delayed?
Ms Goodwin: The Advocacy Act is, from my point of view and from the other survivors I have spoken to -- I have spoken to a great many survivors. I am a member of Toronto Psychiatric Survivors. In fact, I work for them. I am also a member of the Ontario Psychiatric Survivors' Alliance. I am a member of the Supportive Housing Coalition of Metropolitan Toronto and a lot of organizations where I have met hundreds of other people like me. We all feel Bill 74 is very important to us. It is a wonderful piece of legislation, but for the others, Bill 108 and Bill 109, the Consent to Treatment Act and the Substitute Decisions Act, we would like to see Bill 74 put in place first, prior to those other two pieces of legislation, or even Bill 110, just to see how the advocacy part of it gets functioning well first before the other bills are brought in.
Mrs Sullivan: Ms Goodwin, I am interested in your suggestion that Bill 74 proceed before 108 and 109. We had assurances from the parliamentary assistant yesterday that the three bills would proceed at the same time and as a package, as they were introduced. So it is clear the government has made up its mind on that issue.
One of the suggestions I was also going to make to you was that if the Substitute Decisions Act was delayed, the advocate would then be left in a position of in fact becoming a decision-maker, which has been put to us as not the role of an advocate. Would you like to comment on that?
1620
Ms Goodwin: I have to agree with you there. You are absolutely right. The advocate cannot make a decision for a person. It is their individual right to do it. Then I stand corrected. I guess the other bill, the Substitute Decisions Act, would have to be put in place at the same time.
Mrs Sullivan: Could you define, because it is not defined in Bill 74, what you see as the role of the advocate, the training required, the scope of practice and the disciplinary or accountability requirements for an advocate?
Ms Goodwin: I would be defining it solely from my position as having been a vulnerable person at various times over the last decade. I could see an advocate acting on my or any other person's behalf, whoever is in the vulnerable position, in either an institution, a boarding home, a group home or any other sort of institution or treatment place. In the training they would have to have, it would be very nice to see a training package that is developed not necessarily strictly by academics or bureaucrats but people out in the community, such as a few of the groups I have mentioned to you I have been associated with, with their knowledge, because we have the knowledge. We have been there, so we should definitely be in on helping to develop the training package. I think that is in Bill 74, I think section 7, that the commission does not have to do everything directly but can use community groups to do the training through and that sort of thing.
Mrs Sullivan: There has been some concern raised before the committee that the advocate should have knowledge of the disease, the illness, the particular disability that has led to the person's incapacity. Do you concur with that?
Ms Goodwin: I suppose yes, I concur that the advocate should be trained in what traditional medical science believes these illnesses are. They should also be trained in the alternative points of view that in fact these are not chemical illnesses, they are society-imposed and behaviour-imposed illnesses.
For instance, I have been labelled as a person with a personality disorder, a hypomanic, a seasonally adjusted depressant. What else have I been called? I think that is about it, thank God. Anyway, I do not consider myself any of those things and I have not exhibited lasting characteristics of someone with that supposed mental illness or mental disability or whatever other people want to call it.
While yes, it would be valuable for an advocate to know what are the traditional symptoms and blah-blah-blah of a schizophrenic or a hypomanic or whatever the heck you want to call us, he or she should also be aware that in a great deal of cases these are people who have been mislabelled by the psychiatric institution they are in.
I know you have had other people come before you, Hugh Tapping and quite a few other speakers, who have been labelled at various times as various things, and lo and behold, they are just normal people and they are just fine right now.
Mrs Sullivan: I suppose the question really related to not only those illnesses or impairments that are considered psychiatric but, by example, those which may be degenerative, such as Alzheimer's. To know the manifestations of Alzheimer's, it has been put to us, is important in knowing how, when and in what manner to provide advocacy services.
Ms Goodwin: Yes, I can see your point there. I agree it would be invaluable for the advocates to know those things. I do not think they have to be taught in a medical teaching hospital. There are lots of community groups, such as the Alzheimer's association, where they know as much, if not more, than any of the doctors do about those sorts of things. I do not think you have to turn people out of university with a degree and then they will be trained in recognizing all these medical things and they will be ideal advocates. They will not be. It takes some other kind of training as well.
The Chair: Ms Goodwin, on behalf of the committee, I would like to thank you for taking the time out today and coming and giving us your presentation. Resuming where we left off, Mrs Sullivan.
Mrs Sullivan: I suppose that is right. I want to make note of the fact that I was surprised the government members did not make questions or comments in relation to the recommendation that one bill be proceeded with, although I indicated to the witness that the government had indicated the bills would proceed and be dealt with at the same time. That clearly is an issue that has been expressed by many groups, a matter of concern, and we need to know how we are going to deal with these bills.
Frankly, I think without any indication of when amendments are going to be put forward by the government, what period of time there will be for consideration of those amendments, when clause-by-clause will proceed -- as I indicated, my understanding is that the committee so far has determined that at the conclusion of public hearings, which is now, clause-by-clause will proceed immediately.
Mr J. Wilson: Are we going to get an answer to this stuff or do you want us just to filibuster and debate this all night? Where are we going from here? It has been weeks to figure this out. Do you have any rough idea of what the time frame is, perhaps?
Mr Mancini: Do you know what you are doing? That is the question.
Mr Morrow: That is fair.
Mr Mancini: Then why do you not tell us?
Mr Morrow: Can I let Mr Malkowski answer this, please?
Mr Malkowski: As we have mentioned this afternoon, first of all, we need more time to consider what we have heard and to get the information back to you later.
Mrs Sullivan: Mr Chairman, if I may, that is not a satisfactory response. There has been a determination by the subcommittee that the committee will proceed after public hearings into clause-by-clause, and we now hear, "We'll get back to you." That is absolutely irresponsible. Earlier today, a motion that put forward a reasonable, legitimate process for dealing with these bills was defeated by the government majority. What is the government's intention? Could we hear it perhaps from the Vice-Chair of the committee or from any of the parliamentary assistants? This is ludicrous.
I would be delighted to go back and reach every person who appeared before this committee by fax this afternoon with the information that the government members have advised us they will get back to us when they have decided, when they have their house in order, what the process is going to be. Clearly, this is a government in disarray.
The Chair: One piece of clarification is that the natural process is to automatically go to clause-by-clause now.
1630
Mr Wessenger: I guess that was my question. I wanted to know what the process would be. There has been no subcommittee decision on clause-by-clause, so I had assumed, maybe incorrectly, that if there was no subcommittee decision then it would not proceed until there was a subcommittee decision. Am I wrong in that regard?
The Chair: You are wrong. The natural process is that we will proceed to clause-by-clause, absent any motion to the contrary.
Mr J. Wilson: When is that going to be?
The Chair: That will happen at the next meeting of the committee, and the committee will meet at the call of the Clerk of the House.
Mr Wessenger: The next meeting of the subcommittee then, is that correct?
The Chair: No. At the next meeting of the whole committee, we will proceed to clause-by-clause.
Mr J. Wilson: Are you guys going to show up at the next meeting of the subcommittee, or do we have to --
The Chair: Would you like the clerk to explain this?
Mr Wessenger: I think it might be helpful to all members of the committee, yes.
Clerk of the Committee: Essentially, because there will be a throne speech, the committees get reconstituted. Once the committees get reconstituted, there is no Chair, no Vice-Chair, in essence no committee. So the first meeting of each session is always called by the Clerk, at which point we elect a Chair and a Vice-Chair. At that point, absent any motion to the contrary, we would continue with the business of the committee.
Mr Wessenger: An appropriate motion could be made at that meeting, then, too.
Clerk of the Committee: Motions can always be made.
Mr Winninger: I was just going to suggest that indeed it would be premature to try to bind the hands of the new committee members in the new Legislature. Consequently, I do not think an allegation that this government is in disarray is well founded. We are heading into a new session, a new constitution of a committee. Let that committee deal with it as and when it sees fit.
Mr J. Wilson: There are a couple of problems here. We have a motion from Mr Poirier that, as a continuation of these committee hearings, we deal with the concern of Dr Cleghorn, so that is up in the air. Second, during the Regulated Health Professions Act hearings in the standing committee on social development, a representative from each caucus did show up at the subcommittee meetings. In the last two subcommittee meetings of this committee, there has been a no-show by the government, so we were unable to proceed with the subcommittee meetings. Surely to goodness you know when you want the committee to meet again so we can deal with Cleghorn and start to prepare for clause-by-clause. You cannot just leave us in limbo. We had much better cooperation from you, Mr Wessenger, during the RHPA hearings. Why are we not seeing that same level of cooperation during these hearings? I do not understand it.
The Chair: Thank you. Mrs Sullivan.
Mr J. Wilson: That is actually a question, Mr Chair.
Mr Wessenger: I can only assure you, you will have cooperation.
Mr Mancini: To the four parliamentary assistants who are here, I assume you regularly meet with your ministers.
The Chair: Order, please. Mrs Sullivan has the floor.
Mr Mancini: I am sorry, Mrs Sullivan.
Mrs Sullivan: I notice Mr Winninger spoke about binding the hands of the new committee and therefore refusing to provide any indication of when the government would have amendments, how it would be proceeding with those amendments to ensure they are put forward in an understandable way and appropriate comment and analysis could be done. I would like to remind you that documentation is being made public about this government's intention to proceed with these bills in the Legislature in this current spring session. How can Mr Winninger say he does not want to bind the hands of the committee? How can Mr Malkowski say, "We'll get back to you"? This is absolutely irresponsible. I have never seen anything like this at the House.
Mr Poirier: Those are exactly the words I wanted to use. I have been here for seven and a half years and I never thought I would see something like this. There is something very wrong within your government, and I say this in a very friendly term.
Mrs Sullivan: It starts at the top.
Mr Poirier: It starts somewhere, but we are seeing the result right here today. I have seen seven and a half years' worth and I never thought I would see this. I cannot believe that you believe this is such an important piece of legislation, all of these bills, and these are the answers you are giving us today. It is thoroughly unbelievable, and if you had been here for seven years you would understand where I am coming from. I do not understand that.
You do not seem to have anybody to advise you on what the process is. This is being done usually on a continuous basis. It is not done in a vacuum. It is not a summer project. It is not a four-month project that you have to reply to and start at zero again every four months, guys. Something is wrong with how you are doing this and a lot of the people who put a lot of faith in this process must be wondering right now. As we say in a highly technical term, what the hell are you doing? Where are you going? I have never seen this and I really cannot believe what I am hearing.
I am extremely concerned and worried because we have invested a heck of a lot of time. We suspect you have a very long list of amendments. You can know right away that at least we, and I think the Tories, have a very long list of amendments, because of what the people said when they came in front of us. And you just say, "Well, we'll send you a postcard from somewhere and we'll tell you when we resume again." It is not a question of binding the hands of those who follow; it is to continue a very serious process where a lot of public servants, counsel, volunteers, groups, individuals inside and outside this place, have been working years and years to get to here.
When you stop and think of that -- and I listened to your answers -- wow. I do not know how to react. I am trying to be as polite as I can but I am having a hell of a hard time. I just cannot believe this. Go back to your caucus, go back to your advisers and tell them to get off their buns and get going. Say something, do something; just do not refer us to legal counsel and advisers and "We'll get back to you," with all due respect. You have been there a year and a half now. You will have to get into the driver's seat. Please.
Mr Malkowski: It is still early to discuss. I think what we want is more time to be able to discuss what we have heard, and I would like to propose a motion for adjournment today, please.
The Chair: We have a motion to adjourn. All those in favour?
Mr Mancini: Let's have a recorded vote, because the committee is being stymied here. Is that the answer to the committee members when we want to have a discussion as to where the committee is going, that some member of the government makes a motion to adjourn? That is the government's answer?
The Chair: The motion to adjourn is not debatable. A recorded vote on the motion to adjourn.
Mr Morrow: You have taken the vote already. How can you ask for a recorded vote now?
Mr Mancini: I want a recorded vote, Mr Chairman.
The Chair: Recorded vote. All those in favour of the motion to adjourn?
Clerk of the Committee: Mrs Carter, Mr Wessenger, Mr Winninger, Mr Morrow.
The Chair: All those opposed?
Interjection.
Clerk of the Committee: I did not see Mr Malkowski's hand. Mr Mancini, Mr Poirier, Mrs Sullivan, Mr Wilson.
Mr J. Wilson: For the record, Mr Malkowski did have his hand up, Madam Clerk, for the affirmative. She missed him in the recorded vote.
The Chair: The committee stands adjourned at the call of the Clerk.
I have one announcement to make before everybody walks out.
Mr Mancini: We are adjourned.
The Chair: I know, but this is just for your information.
Mr Sterling: We are adjourned. Speak to the government members.
The Chair: I will say it anyway. The summary will be out on next Friday. The cutoff date is this Friday for briefs to be included. The briefs will be distributed if they come in afterwards.
The committee adjourned at 1638.