SUBSTITUTE DECISIONS ACT, 1992 / LOI DE 1992 SUR LA PRISE DE DÉCISIONS AU NOM D'AUTRUI
ADVOCACY ACT, 1992 / LOI DE 1992 SUR L'INTERVENTION
CONTENTS
Wednesday 2 September 1992
Substitute Decisions Act, 1992
Advocacy Act, 1992
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Cooper, Mike (Kitchener-Wilmot ND)
*Vice-Chair / Vice-Président: Morrow, Mark (Wentworth East/-Est ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
*Carter, Jenny (Peterborough ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
Curling, Alvin (Scarborough North/-Nord L)
Harnick, Charles (Willowdale PC)
Mahoney, Steven W. (Mississauga West/-Ouest L)
*Malkowski, Gary (York East/-Est ND)
Runciman, Robert W. (Leeds-Grenville PC)
*Wessenger, Paul (Simcoe Centre ND)
*Winninger, David (London South/-Sud ND)
Substitutions / Membres remplaçants:
*Brown, Michael A. (Algoma-Manitoulin L) for Mr Mahoney
*Cleary, John C. (Cornwall L) for Mr Curling
*Owens, Stephen (Scarborough Centre ND) for Ms Akande
*Sterling, Norman W. (Carleton PC) for Mr Harnick
*Sullivan, Barbara (Halton Centre L) for Mr Chiarelli
*Wilson, Jim (Simcoe West/-Ouest PC) for Mr Runciman
*In attendance / présents
Also taking part / Autres participants et participantes: Fram, Steve, counsel, policy development division, Ministry of the Attorney General
Malkowski, Gary, parliamentary assistant to the Minister of Citizenship
McKague, Carla, counsel, Office for Disability Issues, Ministry of Citizenship
Perlis, Linda, policy analyst, Office for Disability Issues, Ministry of Citizenship
Valentine, Mary Beth, senior policy and program adviser, Office for Disability Issues, Ministry of Citizenship
Winninger, David, parliamentary assistant to the Attorney General
Clerk / Greffière: Freedman, Lisa
Staff / Personnel:
Filion, Sibylle, legislative counsel
Hopkins, Laura, legislative counsel
The committee met at 1046 in committee room 1.
SUBSTITUTE DECISIONS ACT, 1992 / LOI DE 1992 SUR LA PRISE DE DÉCISIONS AU NOM D'AUTRUI
Consideration of Bill 108, An Act to provide for the making of Decisions on behalf of Adults concerning the Management of their Property and concerning their Personal Care / Loi prévoyant la prise de décisions au nom d'adultes en ce qui concerne la gestion de leurs biens et le soin de leur personne.
The Chair (Mr Mike Cooper): I would like to call this meeting of the standing committee on administration of justice to order. This morning we'll be starting our consideration of clause-by-clause on Bill 108. Our first amendment is in the government reprint, subsection 1(1).
Possibly we could get some clarification here. Was it the committee's understanding that it would be one five-minute opening statement at the very beginning of the clause-by-clause consideration or at the beginning of each of the bills?
Mrs Barbara Sullivan (Halton Centre): It appears that we've had different understandings. My understanding was that we would speak to all four bills, but I think my colleague in the third party, who has a particular interest in Bill 108, had a different understanding and expected that there would be an individual statement with respect to each of the bills. I think it might be useful if we had that statement, and to hear from the government as well.
The Chair: It seems the government side concurs with that.
Mr David Winninger (London South): I'd like to say a few words on behalf of the Attorney General in connection with Bill 108. I'd like, first of all, to thank the staff of this committee for their excellent work thus far in bringing these proceedings to this point. I'd also like to thank the minister's political staff, who have assisted greatly.
I'd like to thank in particular Steve Fram, who's sitting to my left today, the architect, if I may call him that, of the Substitute Decisions Act, who's been a great support all through these proceedings and, many of you may have noticed, has attended very consistently and regularly.
I'd also like to thank my executive assistants, Lynne Jeffrey and Lois Pineau, who has temporarily abandoned her career as a philosophy professor to assist in these proceedings.
I'd also like to thank the civil servants within the Ministry of the Attorney General for their able assistance. I'd also like to thank the opposition members for sharpening our wits over the last couple of days, and certainly late into last night.
This Bill 108 I think effects a balance between those who would seek to enhance the autonomy and independence of incapable and vulnerable people while at the same time assuring those who are incapable of making decisions for themselves, even partially, that there is a substitute decision-maker available to make decisions that are appropriate with the expressed wishes of the individual or vulnerable person, and in the absence of expressed wishes, certainly in accordance with the best interests of that person.
We've listened very carefully to the very strong presentations by members of the public and community organizations and various professional groups throughout. They've been extremely well presented. The fact that the government responded with 199 amendments is certainly testimony to the value of the contribution of the public, and at the same time the opposition members, at least in the case of Bill 74, have put forward a number of very useful and helpful amendments. Again, where we saw merit in the amendments, we've certainly been willing to vote in favour of them, because we want the best possible legislation we can achieve.
In her opening remarks, Ms Sullivan did voice a number of concerns. I suggest that these were voiced, perhaps, in a tone of studied hysteria. There was reference to "panic-stricken." Ms Sullivan quoted Mr Sterling in the phrase "jackboot tactics," when our party has always been known for wearing Hush Puppies. I found that rather odd.
Mrs Sullivan: I wouldn't push the foot image.
Mr Winninger: Certainly not into anyone's mouth. I suggest that our government has reached a level of perfection here that's laudable, considering the challenges of introducing what is clearly state-of-the-art legislation, that other provinces haven't yet achieved but I know are quite interested in.
I note tangentially that a week ago I received a call from a fairly senior social worker in Saskatchewan whom I met a few years ago in connection with a child representation case. He was interested in getting phone numbers for the official guardian's office for the child representation office, the child advocacy office here in Ontario, because they don't have such institutions. They've set up an advisory committee to try to bring in what we've clearly enjoyed for a number of years. He was quite impressed at the strides we were taking with this advocacy legislation and certainly seemed to find that it was worthy of emulation in Saskatchewan.
What I'd call the studied hysteria has to be countered here today in my opening. Ms Sullivan referred to burgeoning bureaucracy at enormous public cost, families which will be pitted in an adversarial position with advocates, and the injured not receiving access to timely treatment. I feel that our amendments have gone a long way towards addressing all of those concerns, and I invite the members opposite to try to avoid this kind of scorched-earth approach to our legislation and raising public hysteria at the risk of, I think, promulgating insecurity among members of the public.
I would also suggest to Mr Sterling, who indicated in his opening remarks that our advocacy legislation does not provide vulnerable people one more bed, one more meal or one more treatment, that certainly if you provide beds, meals and treatment, it's important that there be someone who can be what's called a friend to vulnerable people and assist them in achieving proper nutrition and proper accommodation and allowing them to have some input into treatment decisions that are made. I don't think you can put a price on human dignity, and certainly our legislation is designed to accord a larger measure of dignity to vulnerable people than they've enjoyed hitherto.
In reference specifically to the piece of legislation I'm steering through, I would indicate at this point that the Attorney General remains actively interested in these proceedings and is continually briefed on what is said and done in these proceedings, and to suggest that the Attorney General or other ministers are not interested in this legislation and in these proceedings is clearly incorrect. Many, many meetings have taken place to ensure that these pieces of legislation are well integrated and that concerns have been addressed.
Particularly with Bill 108 -- I'm getting some signals about the time -- we did in the reprinted version introduce some substantive amendments, three in particular, to address concerns that were expressed.
One was to allow what is called a pre-validated power of attorney, popularly known as the Ulysses clauses, to enable people to be treated during what might be psychotic interludes. They have, I guess, signed an instrument that's been validated in advance that would allow them to be treated, notwithstanding certain objections during psychotic episodes that they may regret later because they wouldn't have the treatment they needed.
Secondly, we've lowered the threshold for competency to appoint a power of attorney for personal care and, thirdly, we've allowed a power of attorney to have some effect if the grantor doesn't object prior to validation, because that would allow an attorney to make certain important decisions and take certain steps prior to validation.
The amendments we've introduced at this stage, following the very valuable hearings in August, are largely of a housekeeping nature. However, there will be one amendment of a substantive nature which we may seek to introduce following further discussion.
We've just now received the helpful suggestions of the Liberal and Tory caucuses in terms of amendments to the bill, and I look forward to discussing them further during the course of this debate.
The Chair: Thank you, Mr Winninger. Ms Sullivan, would you like to make an opening statement?
Mrs Sullivan: I'm going to be very brief. I think we will find that this bill will in fact be easier to deal with than Bill 74. Certainly there are fewer amendments coming forward, and those amendments will be more of a technical nature.
The work that has been done on substitute decision-making has now been through three governments, and with fairly extensive early work under all three. We certainly appreciate some of the major amendments which were put forward in the government's first interim round. We felt those amendments relating to the expedited power of attorney were particularly useful.
I'd also like to commend ministry staff for their cooperation in providing advice to us and explanations of sections where there are some arcane properties included in the bill and making them perhaps seem less arcane, although we still do have amendments in some of those areas.
I also want to pay tribute to Mr Sterling -- which I did, I think, as we were going through hearings -- who brought forward, as a private member, living wills legislation that may have provided an impetus for some of the work that's here. I think that kind of participation from a private member is really key to the shaping of legislation and enhances the role of a legislator.
I wish that as much care and as much consideration had been put into Bill 74 as has been put into this bill. I think we will find that we'll be able to proceed without the acrimony that is attached to Bill 74. While we still have some concerns and hope we will have further explanations about who would qualify, by example, to be an assessor and what his or her role and training are, and we will have questions as we proceed through the bill, there will be a far different atmosphere with this bill than there has been with Bill 74.
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Mr Norman W. Sterling (Carleton): I'd like to start out by thanking Mrs Sullivan for her kind comments.
We've had a lot of people in Ontario and in Canada who've been interested in the subject. One of the people I'd like to recognize is Marilynne Seguin of the Dying with Dignity group, who has, through her own efforts, educated much of the Canadian public as to the whole issue of facing that terminal decision and trying to maintain the dignity of the individual as he or she approaches that final day. She has worked very hard with a whole number of volunteers in Dying with Dignity, and I think helped bring this issue to the fore.
I've had some experience in relation to the whole idea of empowerment. My interest in this area goes back to the early 1980s when I served in the cabinet of William Davis and brought forward a bill to create a durable power of attorney or a continuing power of attorney for property, past the point of capacity to incapacity. Prior to that time, the only way a person could have his business affairs taken care of was to have a committee appointed by a court or for the public trustee to take over the affairs of an individual. It was a costly procedure for private citizens to make.
I felt at that time we could move the law along and provide that a person sitting down with his friends and advisers could provide for contingencies in the future which he may not foresee so that his personal assets and property could be taken care of by a friend or family member after he had lost the ability to take care of them himself. I worked very closely with the Alzheimer society in bringing forward that piece of legislation on behalf of the Attorney General and carried it through this Legislature in 1982 or 1983, I believe.
Today we are dealing with another matter, power of attorney for personal care, and it is somewhat ground-breaking. Well, it is ground-breaking for this province, because we have never had a piece of legislation in place which permits an individual to appoint another friend to maintain his wishes when he is no longer capable of speaking for himself, to put those wishes in place when he is most vulnerable, usually at a later stage in life, but it can occur during all of our life.
I first introduced legislation in this area some three years ago, before the last election, dealing with both power of attorney for personal care and with living wills, which we will be dealing with in Bill 109. I continue to be concerned about making these kinds of instruments, these kinds of opportunities which Ontario citizens will have after Bills 108 and 109 become law. I continue to be concerned about keeping it as simple as possible. In doing that, I know that you have to take some risks, that there could be some kind of abuse down the road, and our caucus will focus on making this process as simple as possible.
I would have liked both the power of attorney for personal care and living wills to be embodied in one piece of legislation as separate and apart from other issues, but I'm quite willing to work with Bills 108 and 109 and hope that by the development of appropriate forums, through education, the public will be able to understand the concepts and will be able to execute these kinds of documents. I hope they will therefore be empowered to control their lives much longer and maintain the dignity they want to have during all their lives.
I'm encouraged in terms of the government dealing with the issue of guardianship. I hope that through Bill 108 parents of schizophrenic patients will have the ability to make certain that their schizophrenic family members will be able to receive appropriate treatment so that they can be useful citizens of the province and can in fact get the treatment I'm convinced they need.
I want to say that we have continued to deal with this piece of legislation in as constructive a manner as possible. We don't anticipate that the hearings on Bill 108 will take all that long. We are going to focus most of our concern with regard to the issues of making these documents -- I'm talking about the powers of attorney -- as accessible to as many people in the province as possible.
The Chair: I thank all parties for your opening comments. We'll now proceed to clause-by-clause.
The first one is in the government reprint, subsection 1(1). Any comments? Seeing no comments, all those in favour? Carried.
The next one is in the government reprint, subsection 1(2). Any comments? Seeing no comments, carried.
Government reprint, section 5? Carried.
Government reprint, subsection 7(1)? Carried.
Next is PC motion, subsection 7(2).
Mr Sterling moves that subsection 7(2) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended and the following added:
"7(2) ...or provide a gratuitous benefit directly or indirectly to a witness to the continuing power of attorney."
Mr Sterling: Mr Chairman, with your indulgence, I would like to also move my amendment, which I believe is next in order, on section 10 because the two are interrelated.
The Chair: Is there unanimous consent to introduce both motions? Agreed.
Mr Sterling moves that section 10 of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out and the following substituted:
"10(1) A continuing power of attorney shall be executed in the presence of two witnesses in the manner described in subsection (3).
"(2) The following persons shall not be witnesses:
"1. Any person who might receive a benefit from the attorney.
"2. A person whose property is under guardianship or who has a guardian of the person.
"3. A person who is less than 18 years old.
"(3) Each witness shall, if the witness has no reason to believe that the grantor is incapable of giving a power of attorney, sign the power of attorney as witness.
"(4) A continuing power of attorney that does not comply with subsections (1) to (3) is not effective, but the court may, on any person's application, declare the continuing power of attorney to be effective if the court is satisfied that it is in the interests of the grantor or his dependants to do so."
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Mr Sterling: These two clauses deal with the problem of who can or cannot witness a power of attorney dealing with property. I believe the qualifications of the witnesses should be different when dealing with power of attorney for personal care, because there are different interests associated with dealing with property and dealing with health treatment.
Basically, I think that when you come down to the bottom line, you don't want anybody to be a witness to the document where a person is giving someone else the right to transact business on his or her behalf if he or she is away from the jurisdiction or he or she is incapable of making decisions.
The people who witness it should not in any way directly benefit from the attorney who has received that power to act on his or her behalf. Therefore, instead of trying to delineate who should or should not sign that power of attorney then, I have simply made it one test, or essentially one test, and that is, if you witness a power of attorney, the attorney acting under that cannot go back to the witnesses and say, "You are going to receive a gratuitous benefit as a result of my power." I guess it's as simple as that.
I have made a few other exclusions. I don't think a witness to a power of attorney should be a minor. I think it's not an onerous requirement to make somebody 18. Also, I put in the exclusion regarding guardianship. It's a little different approach than has been put in by the government, but I'm going to listen to any objections that people might have to this kind of approach.
Mr Winninger: I'm a little concerned with the amendments put forward by Mr Sterling to subsection 7(2) and section 10. It's true that in section 10 we preclude a person related to the grantor or attorney by blood, adoption or marriage, basically a family member, from acting as a witness. However, we do have the saving section for non-compliance under subsection (5), which means that you could have a family member witnessing a power of attorney; you could have a family member going to court and asking that the power of attorney be effective notwithstanding a breach of one of the earlier provisions.
I note that you have a saving provision as well. But the concern here is under, first of all, subsection 7(2), if, let's say, a son or daughter of the donor of the power of attorney were a witness to the power of attorney and, notwithstanding that, the court approved it as effective, later on in that child's life the donor may wish to confer a benefit upon the child, and it would seem to me and Mr Fram that your amendment would preclude that eventuality. I'll ask Mr Fram if he has anything to add.
Mr Steve Fram: There's a lot that's very appealing to Mr Sterling's motion. It in fact follows the kind of provision that has been a requirement of wills, that a witness to a will cannot receive a benefit under the will. The central difference between it and a will is that you know when you make a will who the beneficiaries are, or the classes of beneficiaries, so you can say, "No, don't sign." The problem with the amendment that's proposed is that anybody might receive a benefit.
I was thinking about this on my way to work this morning, because I was privy to conversations with Mr Sterling yesterday about the proposed amendment. If I were making out a power of attorney for property, for example, the most likely person I would call on to witness that would be my next-door neighbour, Murray Sedgewick. Murray Sedgewick would be a person whom, if he got into difficulty, I would like my wife to benefit. They have been good friends for a long time. And I could express that intention.
As a lawyer, if someone asked me and Murray was there, knowing that, I would have to say, "No, Murray, you can't be a witness." Indeed any one of my family or my wife's family is now precluded, because all the people I like can't be witnesses. I don't know when they're going to fall into difficulty and I would want my attorney to take care of my friends and family in their difficulty if there's money to do it, without having to go to court to get approval.
It's that total lack of predictability that makes it a concern for me. I see that for some people the provisions of the government bill will have difficulties. Subsections 10(3), 10(4) and 10(5) are raised again not only in Mr Sterling's motion but in the proposed Liberal motion to change it.
It's a question of, how far do you go trying to cut off, and it's something the committee I chaired for six years struggled with for a long time, but reasonable people can disagree with the conclusions it reached. The conclusions they reached are here. The issue is, how far do you cut out all of those who are close to the person because you're worried that the witness will be in collusion with the attorney to defraud the granter?
The second problem with Mr Sterling's proposed change to section 10 is that it makes two sets of witnessing requirements for powers of attorney. Most people will do them together. They will do a power of attorney for property and they will do a power for attorney for personal care, and to have two sets of different witnesses to essentially the same kind of proposition -- that is, "I'm giving to you the authority to make decisions if I become incapable" -- seems to add a level of difficulty to the documentation that we want to keep most simple and direct for people to work with.
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Mrs Sullivan: I think it's appropriate to speak to this now without reading our motion in because I think we've been considering to some extent what a witness should be doing and who should be a witness and we have reached different conclusions. The conclusion our party has reached is that simplicity is the best approach; that the witness is there to ensure that the person purported to be making the power of attorney is making the power of attorney. The role there is as a witness, not as a party, to the activities that are taking place within the discussions relating to the power or the content of that power. That is something for the person who is giving the power of attorney to another individual.
So our conclusion with respect to the witnesses is quite different from the third party's conclusions. Ours are to keep it simple and flexible. We have to understand, as well, that in certain circumstances there will be only certain people available to the person without quite considerable expense. By example, I would think that Mr Sterling's motion -- there may be a legal surround to the word "benefit" that I don't know -- would exclude people who are employees of a nursing home when the person in the nursing home, who may be capable of giving a power, would have no other recourse but those people as witnesses, without calling in and paying for a lawyer or making some other interventions.
Does a person employed in a nursing home receive a benefit or could there be seen to be a conflict under Mr Sterling's motion? I don't know what the legal ramifications of that word are, but my preference would be to keep it simple.
Mr Sterling: I thought it was simple. If there was any chance of your receiving a benefit, don't witness it. That's basically the rule. The only other rule you really need to know is that the witness has to be 18 years or more. Instead of having categories there, you have the one rule.
I think, in fairness, Mr Fram's second argument that the consistency between dealing with the witness requirements for a power of attorney for property and a power of attorney for personal care be the same, is a somewhat compelling argument. His first argument, with regard to the fact about Mr Sedgewick who lives next door, I think, is -- I wouldn't, when talking about Mr Fram, talk about a specious argument, but I would say that there are, what is it, three billion other people besides Mr Sedgewick and his wife who might sign a power of attorney? Therefore, I don't think the public out there in general are going to have a great problem finding two witnesses who, at some time in the future, might benefit in a gratuitous way -- in other words, a gift -- from the power of attorney you are appointing to take care of your property.
The most compelling argument is if you can line up a reasonable set of witness requirements for both the personal care attorney and the one dealing with property. Unfortunately, I'm not sure you can, because the considerations of protecting the grantor are quite different in dealing with the two kinds of issues.
Mr Winninger: I'm reasonably confident that all of the safeguards that need to be in here are already in section 10. I would also suggest that Mr Sedgewick has probably already received a gratuitous benefit in being for ever immortalized in the annals of Hansard.
Mr Paul Wessenger (Simcoe Centre): I'd just like to add that I think subsection 10(2) is restrictive enough and perhaps even more restrictive than it ought to be. So for that reason I can't really support Mr Sterling's amendment.
Mr Sterling: Mine is surely less restrictive than subsection 10(2) by a long, long shot, because if a brother or a son wants to sign as a witness, then he knows that he's excluded. You don't restrict anybody from being a witness if he or she is 18 years or more, but you pay the penalty, and as long as you do it with your eyes open, so be it. It's not restrictive of anybody in the world. So you can't say that my amendment in any way restricts anybody, save and except it restricts the person who has the power to bestow a benefit on a person who's been a witness, much like a will, as you said.
Mr Wessenger: My concern relates to the --
[Failure of sound system]
The Chair: Excuse me, that wasn't picked up. We'll have a one-minute recess.
The committee recessed at 1126.
1127
The Chair: I call this meeting back to order.
Mr Wessenger: My main concern relates to the situation of a prohibited person witnessing and then being deprived of a benefit, as raised initially by Mr Winninger. I think that's my main concern. I'd prefer to have the flexibility there than the restriction.
Mr Sterling: I don't think we should prolong the discussion on this. I'm the proposer of the motion and I feel that there's some flexibility on the part of the government in terms of removing some of the witness requirements on the other part, so I'm ready to vote if the rest of the committee is.
The Chair: Seeing no further discussion on the PC motion on subsection 7(2), all those in favour? Opposed?
Motion negatived.
The Chair: On the PC motion on section 10, all those in favour?
Mr Sterling: I withdraw that motion, Mr Chairman, because it wouldn't make sense without subsection 7(2).
The Chair: Withdrawn? Thank you very much.
Okay, back to the government reprint on subsections 7(3.1) and (3.2). Any comments? Mr Winninger.
Mr Winninger: I was expecting the Liberals, who put forward the motion, to speak in support of it.
The Chair: No. This is the government reprint.
Mr Winninger: Sorry. Government reprint? Okay.
The Chair: Subsections 7(3.1) and (3.2).
Mr Winninger: I assume that's going to carry. Is it carried?
The Chair: No, we haven't voted yet. Carried? Carried.
Back to the government reprint, subsection 10(1). Discussion?
Mr Wessenger: Could I just make a point? If an amendment is carried with respect to subsection 10(2), there could be an effect on subsection 10(1). Am I correct there? Perhaps we should stand down subsection 10(1) until we deal with subsection 10(2).
Mr Winninger: We have a Liberal amendment.
The Chair: Do we have unanimous consent to stand down subsection 10(1)? Agreed.
Okay, the Liberal motion on subsection 10(2).
Mrs Sullivan moves that paragraphs 3 to 7 of subsection 10(2) of the bill, as reprinted to show the amendments proposed by the Attorney General, be struck out.
Mrs Sullivan: I've pretty much spoken to this motion in discussing the issue with respect to Mr Sterling's amendment. I should also tell you, depending on how the discussion goes here, I also have a replacement motion, which would only take out paragraphs 3, 4 and 5, which is, as I judge the nature of the discussion, the appropriate way to go. If we can have a nod, then what I would do is withdraw the motion just read into the record, read a replacement motion into the record, and then we can take that as the motion that I want to put forward.
Mr Winninger: May I respond? Basically, since the deletion of paragraphs 3, 4 and 5 would not be inconsistent with the rest of the legislation or government policy, we won't be objecting to that, but as you acknowledged, we do need to retain paragraphs 6 and 7.
Mr Sterling: I think when we're looking at this, we should look at it not only in terms of a power of attorney dealing with property but as a power of attorney for personal care, so that we have two consistent requirements. As I said, Mr Fram's argument that we have consistency between the two is somewhat compelling.
I have a little problem with removing paragraph 3, quite frankly. I agree with paragraphs 4 and 5 being removed and I think removing paragraphs 4 and 5 is the biggest problem you face in a practical sense. But in dealing with personal care, I'm not certain the grantor, who is treating someone as a child of his family, should have that person, the child, signing the power of attorney. I think the connection is just too close and it invites too much mischief in certain circumstances. That's where I would draw the line, but I'm quite willing to listen to argument from other members of the committee. I would like paragraphs 4 and 5 to be removed but have some difficulty with paragraph 3.
Mr Wessenger: I'd just like to say that with respect in particular to paragraph 4, from a practical point of view, having practised law and having done many wills in hospital settings, I think it would be extremely difficult going to the hospital if you couldn't use one of its employees to witness a power of attorney, especially when you need two witnesses. From a practical point of view, it creates a lot of difficulties, so I would certainly like to see paragraph 4 deleted. I don't particularly have any problem with paragraph 5, so I would tend to agree with Mr Sterling that deleting paragraphs 4 and 5 would make sense.
Mrs Sullivan: I think I understand the arguments that have been placed about involvement of families as witnesses. The question is, in terms of this issue, what is the person doing? The person is witnessing a document, the contents of which that person may or may not have any knowledge. The assurance of that witness is that the person who is the grantor and the person who becomes the attorney are participating as parties. It seems to me that the concerns about the obligation of the family in the participation on the personal care issues relate to the content of that power rather than the witnessing of the power and what in fact is included at the instruction of the person who is granting the power of attorney.
In the situations we're looking at, in terms of whether it's a granting of a power of attorney for property or a granting of a power of attorney for personal care, simplicity is the issue. The ease of formalizing the document, I think, is going to be important because there will be stresses and discussion and emphasis placed on the content of the power of attorney, in which the witness has not a part. I would prefer, as I've indicated, to remove 3, 4 and 5 and just keep it as simple as possible.
Mr Sterling: I think if you're going to go for a general rule, the rule should be in terms of people understanding it. Your family can't witness this. That's what's going to be practised out there. That's the way I think it should be. Your family and everybody will say -- if it's a blood relative or it's an adopted child or it's whatever -- they won't sign as witnesses. I think that's more of a simple rule than saying that the spouse or partner can't sign but the child can sign, or whatever. I think the common definition in layman's language will become that the family can't be witness to this. That will be the bottom line.
I agree that 4 is the key one that has to come out; 5 is such a small part of it. I would suggest you take 5 out, because it might be done unwittingly or people wouldn't even be aware that they were party to the same suit that was going on. You could have a class action that was -- and I'm not sure of the click-in time. Is it as of the time when you sign as witness, or is it when you bestow the benefit? You can get into other issues which I don't think are really relevant to most of the cases.
I again say that 4 and 5 are the ones that I would prefer out, and I would ask Ms Sullivan to consider that. If not, I'm willing to put in an amendment for just 4 and 5 after that amendment.
Mr Winninger: Mr Chair, could we call for a five-minute recess?
The Chair: This committee will stand recessed for five minutes.
The committee recessed at 1138.
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The Chair: I call this meeting back to order. Do we have unanimous consent to stand this down until we redraft it? Agreed.
On the government reprint subsection 10(1), should we also stand that down until the redraft? Agreed.
We will move to the PC motion on subsection 10(3).
Mr Sterling moves that subsection 10(3) of the bill, as reprinted to show the amendments proposed by the Attorney General, be deleted.
Mr Sterling: To date, with regard to powers of attorney dealing with property, there's no such requirement of witnesses at present to determine the grantor's capacity or incapacity to sign the power of attorney. My wish is to try to encourage people to make these kinds of documents. If we throw too much of an onerous responsibility on witnesses to make a determination as to the ability of the grantor or the person signing the power of attorney, we're going to get people who are reluctant to act as witnesses. If you want the Sedgwicks next door to act as witnesses, then this is an unreasonable thing to ask of people who are signing something and not getting any kind of compensation for it.
Mr Winninger: I am pleased to say we favour that amendment as well for two basic reasons: One is that, as presently worded, the section confers a rather onerous responsibility on a witness and, second, that the witness may lack the required expertise to assess the capacity of the grantor of the power of attorney so that --
Interjection.
Mr Winninger: Mr Fram advises that a consequential amendment to subsection 10(4) would have to flow from Mr Sterling's motion, to strike out the content of subsection 10(4) after the word "witness." You may note that the Liberal motion is along those lines.
Mr Stephen Owens (Scarborough Centre): I wholeheartedly agree with Mr Winninger's comments and certainly look forward to supporting Mr Sterling's motion.
Mrs Sullivan: I certainly support this motion. However, I also have an amendment which would strike both subsection 10(3) and subsection 10(4), which would take out any assessment requirement on behalf of the witnesses.
I see counsel is indicating that the only other area which would be problematic is where it says that the witness should sign a prescribed form. I wonder if he would advise us if that would not be simply part of the power of attorney and if the powers to prescribe forms under the regulations wouldn't include the witness portion actually on the power, rather than on a separate form.
In my view, if we take out subsection 10(3), we should take out subsection 10(4) as well; prescribed forms are allowed in other places in the legislation.
Mr Wessenger: I would support the deletion of (3), but I do think it's necessary that there be some form of provision that the witness make a statement that he or she believes the person signing the power of attorney is capable. In other words, you clearly don't want the situation occurring where someone witnesses a signature where he or she knows the person is incapable. I think we need some protection against that aspect.
Mr Winninger: I appreciate Mr Wessenger's comments and Ms Sullivan's comments. However, as I said, if we are prepared to delete subsection (3) and the last two lines of subsection (4), we do need to maintain the first four lines of subsection (4), simply because it envisages a situation where a witness may have reason to believe that the grantor is incapable of giving a continuing power of attorney. In that instance then, that person cannot sign on as a witness. So we need the first four lines in there.
As to Mr Wessenger's comments about "make a written statement in the prescribed form," again if there were a written statement in the prescribed form, then the witness would be commenting on the grantor's capacity, and that's the situation we want to obviate here. A simple affidavit of execution, which has always been acceptable in the past, would suffice, and if anyone wanted to challenge the capacity of the grantor under the circumstances, it could be challenged in the court.
I would just conclude by saying that we are prepared to delete subsection (3) and the last two lines of subsection (4), and if that were acceptable, perhaps we could ask legislative counsel to draft an amendment.
The Chair: Thank you. That's been done for you.
Mrs Sullivan: I think that's an appropriate way to go, and although I haven't introduced them, I will withdraw my amendments.
Mr Sterling: I guess we will need a vote on my amendment.
The Chair: Yes, we will.
Mr Sterling: I'm prepared to vote on that now, Mr Chairman.
The Chair: No further discussion? All those in favour of the PC motion on subsection 10(3)? Opposed?
Motion agreed to.
Mr Sterling: Mr Chairman, I have a motion which has been drafted by legislative counsel to deal with subsection 10(4), so I'll move that.
The Chair: Mr Sterling moves that subsection 10(4) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by striking out "and at the same time make a written statement in the prescribed form."
Mr Winninger: That's certainly an acceptable amendment. We'd be prepared to vote in favour of it.
Motion agreed to.
The Chair: Mrs Sullivan, you're withdrawing your motion before it's introduced?
Mrs Sullivan: My motion will be withdrawn.
The Chair: Thank you. Back to the government reprint on 10(1).
Mr Winninger: Can I comment on that?
The Chair: Yes, Mr Winninger.
Mr Winninger: Just at a quick glance, I think subsection 10(1) would have to be amended to delete reference to subsection (3), and that would do it.
Mr Sterling: Don't they do that? The clerk can clarify this. You don't need an amendment in order to do that. That is done, I think, just as a matter of administration. I don't think you have to worry about numbers or whatever, because it just happens.
Mr Winninger: At the same time, while we're discussing the amendment, subsection 1(5), Mr Fram points out, would have to be amended as well.
Mr Sterling: I think the numbering is taken care of regardless. I mean, that's all you are worried about.
The Chair: Because of the time, maybe we could deal with this tomorrow when we get back to Bill 108 and go to recess for lunch. This committee stands recessed until 2 pm this afternoon.
The committee recessed at 1200.
AFTERNOON SITTING
The committee resumed at 1420.
ADVOCACY ACT, 1992 / LOI DE 1992 SUR L'INTERVENTION
Consideration of Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / Loi concernant la prestation de services d'intervention en faveur des personnes vulnérables.
The Chair: I call this committee back to order. Mr Malkowski would like to make a statement first.
Mr Gary Malkowski (York East): I'd like to open by responding to Barbara Sullivan's concerns from yesterday related to entrance to hospital facilities without a warrant. Further to the discussion of last night, I just would like to clarify that issue in relation to Bill 74.
Bill 74, the Advocacy Act, gives advocates authorized under the act the power to enter facilities such as hospitals and nursing homes without a warrant for the purpose of providing advocacy services to the vulnerable and disabled residents of these institutions.
Advocates must present identification on request and they may enter at times "reasonable in the circumstances." Advocates are permitted to enter patients' rooms as well as common areas. Advocates are entitled to meet with vulnerable persons without interference and in private.
One of the chief purposes of the act is to provide advocates to assist vulnerable persons in speaking up to care providers, voicing their own wishes and concerns and exercising their rights. If advocates are not able to freely enter facilities, severely disabled, immobile, restrained or confined residents, who most need advocacy services, will effectively be denied access to advocates in practice.
The government is not interested in setting up an advocacy system which provides advocates only to people who are physically mobile or to persons who are able to attend public meetings or hear about these services. This government is determined to provide universal access to advocates regardless of disability.
The powers of entry to facilities under Bill 74 are neither unique nor extraordinary statutory powers in Ontario.
Inspectors, medical officers of health and public health inspectors are all authorized under the Health Protection and Promotion Act to enter "any premises" "at reasonable times" for the purposes of that act.
Inspectors under the Homes for the Aged and Rest Homes Act are entitled to inspect homes "at all reasonable times."
Advisory officers appointed under subsection 5(9) of the Mental Health Act, including psychiatric patient advocates, may enter any psychiatric facility "at any time." They are given specific statutory authority to interview patients and inquire into matters concerning patient care.
Pursuant to the regulations made under the Homes for Special Care Act, inspectors can enter homes for special care, including nursing homes and licensed residential homes, "at any reasonable time."
The Developmental Services Act authorizes officers appointed by the Ministry of Community and Social Services to enter facilities "at any time" and includes an express reference to the right of the officer to interview residents.
In all of these statutes, public officials who have direct contact with vulnerable patients and residents have virtually absolute discretion over the circumstances of entry.
Entry to facilities by advocates under Bill 74 will be exercised in accordance with the overriding principles of the act -- ie, to contribute to the empowerment of vulnerable persons and to promote respect for to their rights, freedoms, autonomy and dignity. To suggest otherwise is to imply that advocates will not have basic respect for vulnerable people.
The Chair: Thank you. Just a reminder to the committee members that we are on the Liberal motion, alternate 2, on subsection 17(2).
Mrs Sullivan: The explanation which has been given by Mr Malkowski is precisely the reason, in fact, that we see grave concerns in these areas. The illustrations he's used from personnel, by example, under the Public Health Act, under the Regulated Health Professions Act and under the homes act demand that the people who are entering those places are not entering those places without specific expertise, either in medical care issues or in the management of health care facilities of their nature.
In fact, I have discussed at some length with people who are involved in the implementation as public health officers the way they are enabled to enter a facility and what their practice is, and indeed their practice is never to enter a private room without the consent of the individual. Their practice is never to interfere and intervene in a situation where there is concern about that access.
The act also includes other checks and other balances against undue interference with the privacy of the patient concerned. This bill has no checks and no balances on the advocate.
We understand the role of the advocate. Everybody in the room understands the role of the advocate. I point out to you, however, that the advocate is the person who determines if a person is vulnerable, who determines, on reasonable grounds or suspicion, that a person needs the services of the advocate, who determines what time is reasonable. It's the advocate who determines whether it's a reasonable time, no one else, and it's the advocate who determines what steps are going to be taken with that person.
I cannot recall any other piece of legislation that has such limited checks and balances in terms of rights on invasion of privacy, and I continue to believe that this is a Charter of Rights issue. This is well beyond the needs that are evident and well beyond what the practice should be.
The advocates will not necessarily be trained in every particular health care issue -- when we're talking about health care institutions, by example -- that is being dealt with within that institution, nor with every disease or illness a person has who is resident in a nursing home or in another long-term care facility which would be affected by this act.
If an advocate were to judge, on the basis of lack of information, that restraint, by example, was an abuse, and if that restraint were occurring at 10 o'clock at night, the advocate, under this bill, would have full and effective freedom to enter a private room and to demand, on behalf of that patient, with or without the patient's consent, that action be taken, because the advocate can assume as well that the patient is incapable of instructing the advocate and therefore can speak in the place of the patient, using the vogue term "standing in the shoes" of that patient.
There are, as you know, certain rational and needed times when restraint is not only a viable but necessary portion of health care. That's been recognized in the common law. It's been a matter of considered discussion over the years, and indeed in the Consent to Treatment Act and in fact in this bill the restraint provisions are also recognized. That an advocate would have adequate medical training to make a judgement on the single visit or a visit that occurs at any time on a suspicion or rumour which may come to him or her, although that rumour could be interpreted as reasonable grounds, is absolutely incomprehensible.
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We know, because we've had some indication, that the advocate's training courses are not going to include enough education to ensure that advocates are going to be educated in the health care problems of all of the people who will be vulnerable in any situation. The treatment methods could well be understood if there isn't that adequate training and expertise in that area. That's one matter of concern. The other, of course, is the singular invasion of privacy in situations which are extraordinarily intrusive.
I want to suggest to you further that the provision of this section would not only enable an advocate to enter a private room in a hospital, but because it is so broad and so unlimited, the advocate would also have the right to enter an examination room in a hospital, even while an examination is being conducted. The advocate would have the right to enter a labour delivery room while delivery was ongoing. There is no check and no balance in that situation. The advocate would have the right and the power to enter an intensive care unit in a hospital. There is no check and no balance on that.
This is ludicrous, insisting that the same responsibilities of the advocate to have access to the common areas of a facility as are provided for in the common areas of a controlled-access residence is appropriate. The advocate who then presents his or her identification at the nursing station can be advised, by example, if the patient is in the middle of an examination or if there are physicians and other people involved at that moment in the treatment of that person. It is not only a matter of preserving the privacy of the patient, it is also a matter of simple courtesy.
While I understand all of the rationale for the involvement of an advocate with a vulnerable person and I accept that, there is absolutely no way I will not continue talking on this section until I have some understanding and some commitment from the government that it will accept this amendment. We are prepared to go till 3 o'clock this morning on this amendment if that's the will.
The Chair: Further discussion?
Mr Jim Wilson (Simcoe West): The 3 am stuff really doesn't worry me too much.
Mr Owens: Since you won't be here.
Mr Jim Wilson: Every once in a while, common sense must prevail and one must know when --
Mr Owens: Let me know when it does.
Mr Jim Wilson: When one gets the sense that the committee's bogged down, you can stop hitting your head against the wall I suppose. Certainly I would agree, on behalf of my caucus, with much if not all of what Mrs Sullivan has said. Members know that we introduced the exact amendment and withdrew it because it was the same as the Liberals' amendment.
We just very strongly feel that there should be clear and consistent wording and application of this bill in terms of the advocate's right of entry into both controlled-access residences and facilities. I think the government has to keep in mind that under both situations, these facilities or residences are actually the vulnerable person's home while they are in either the facilities or the controlled-access residences. Subsequently, it only makes sense to us -- and I haven't been able to really figure out what the problem is from the government's point of view -- to have equal application under the law to both of these types of facilities and residences.
I think it defies common sense to do otherwise, and again I would welcome the government's reasoning of why it opposes this because I don't think it's been clearly delineated by Mr Malkowski or any other member. I don't think it is that we're not listening; I just think the government may have missed the point here. It makes abundant sense to have equal application here.
Mr Malkowski: There are certainly many issues that I could respond to but I'll choose one specifically. Ms Sullivan refers to restraint. In fact advocates are asked to become involved. If they were to become involved in inappropriate or illegal use of restraint and seclusion, in fact it is illegal to confine people or force confinement in that way. There have been issues of this brought to the attention of the media.
Last year an elderly patient died because of inappropriate use of the very issue of restraint. The government is interested in providing advocacy services to such people who are not in a position themselves to phone for an advocate to get that help. The government is interested in making sure that such provision is available for these people.
Mrs Sullivan: I think this, once again, goes to the very issue. We will have a person who is an advocate who will be untrained in the medical decisions that are being made in relationship to a portion of the treatment or care with respect to a person. That advocate, untrained in those issues, can, because he or she sees a person who is in restraint, make determinations that the person is being abused, any time of the day or night, in any situation, without any check or balance, and can do so by invading the private housing of the person at the time, the private home, whether it's in a nursing home, whether it's in a hospital, whether it's in a rest or retirement home, whether it's in many other institutions, including major numbers of institutions that are Ministry of Community and Social Services facilities.
Everyone who is in a facility that is a hospital, that is a nursing home, that is a long-term care residence, that is an institution, a group home, by example, under Comsoc, is not a vulnerable person, is not a person who should also be invaded by an advocate because of information that has come his way, which may or may not be correct, without a check and a balance.
There is an assumption that all medical care people are evil, all hospitals and institutions are evil, and therefore the rights of a third party to enter not only where the patient is or where the person is but to hold the assumption that there is something incorrect happening to that patient, rights that are greater -- and I will repeat it, rights that are greater -- than those accorded to our police forces in this province, are provided to that advocate to intervene.
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Common-area access is what we're requesting. Why would there be any difference in common-area access to controlled-access premises than there would be to a facility? I think it would be very interesting to hear from the parliamentary assistant to the Minister of Health on how the minister and that ministry see this kind of unilateral right of people who are in fact untrained medically to have access to any area of any hospital, because there is no limitation to any area where a patient is, perhaps even in the course of treatment, without any check or balance.
I'm going to ask specifically for the participation of the parliamentary assistant to the Minister of Health in this discussion. This is absolutely unprecedented in terms of access.
The examples that Mr Malkowski used yesterday about cleaning staff are specious. We're talking about people who are entering a private room for a purpose. They are searching either for the vulnerable person or for abuses that are happening to the vulnerable person, or they will be making judgements about what is occurring in that room or on that premise. There is absolutely no check on their access.
I believe, frankly, that this is a charter case. But in terms of the practical management of hospitals, the Minister of Health, as the person who is responsible for reporting to the Legislature and implementing the Public Hospitals Act, by example, and the Nursing Homes Act, by another example, must have some comment on this.
Mr Malkowski: I just want to stress in response that the advocate can really only bring to attention the concerns of those individuals. They can only bring these issues to the attention of those people in authority and they are also only exercising the same rights that all of us have for people who cannot speak for themselves. The advocate cannot remove the restraints or undertake any similar action. There's no assumption that anyone is evil, and the advocate is not making that kind of assumption. They are simply identifying a difficulty and informing the authorities of that.
Mr Wessenger: I don't intend to engage extensively in this debate other than to say that if Ms Sullivan's amendment were to pass, I would suggest that the act would be of no particular use to a major portion of the vulnerable persons and we might as well junk the whole act. That's the first thing I would say if it were to pass. I wouldn't see much effectiveness of the act in dealing with protecting the rights of vulnerable people.
Secondly, this concept of "uncontrolled access": I strongly disagree that the act provides "uncontrolled." There are some words that are very limiting in this act and those are the right to enter "at any time that is reasonable in the circumstances." I think that's quite a restrictive right, and certainly any institution would say it's inappropriate to enter at various times that would, for instance, be contrary to health, contrary to particular privacy situations. The particular instances raised by Ms Sullivan, in my opinion, would not be reasonable in the circumstances.
Mrs Sullivan: Could I ask the parliamentary assistant if he would comment then on the proposition included in the act so that anyone who hinders or obstructs an advocate who is entering that private room is subject to legal repercussions? A hospital now can insist, by example, that only one person at a time who is a member of the patient's family can enter the intensive care unit. There would be no such restriction allowable for an advocate under this act.
Mr Wessenger: I'd have to ask for legal opinion on this question. I think we'll ask legal counsel to take the circumstances of a hospital employee telling an advocate, "You can't go into the ICU because of the unstable condition of the patient." I would like to ask legal counsel's opinion on that.
Ms Linda Perlis: I would just like to point out that this section does require that the entry be reasonable in the circumstances. I don't think entering an ICU in the middle of urgent treatment would be reasonable in the circumstances.
Mrs Sullivan: The reasonableness is established by the advocate. There is no right of the institution itself to establish what is reasonable. In fact, the obligation on the facility is to ensure that the advocate enters, because if the advocate is obstructed or hindered from entering, the facility is then liable and can be prosecuted for not allowing the entry.
Mr Wessenger: I don't want to get into legal arguments here, but I would suggest that if the institution gave a reasonable reason for not admitting the advocate, there would be no infringement of the act at all.
Mrs Sullivan: Then let's have the reasonable check included in the act, which is the access to the common area, and then the advocate can present the identification and then proceed to the room.
Mr Wessenger: I assume that's the way it would work. An advocate would come in --
Mrs Sullivan: It's not.
Mr Wessenger: -- identify himself and then --
Mrs Sullivan: It is precisely not that way. The advocate now, in a facility -- this is the whole reason for the amendment -- can proceed directly from the entrance of the building into the private room of the patient, into an examination room and into an ICU. There is no check and no balance. There is no requirement even for stopping.
Mr Wessenger: If I might respond to that, if you look at subsection 16(2), the advocate "shall, on request, present identification" shows clearly that no advocate could --
Mrs Sullivan: Upon request. The advocate can proceed --
Mr Wessenger: On request, that's right. Any hospital person can use the same control over an advocate that he has over any person wandering in to visit a patient.
Mrs Sullivan: The advocate can proceed directly without anyone in the institution or facility knowing that this advocate is intending to go to the room at any time the advocate wants to go to the room. It's only when challenged, if there's a check, that the advocate is not allowed, under this act, and in fact is empowered and given the right to enter at any time according to the advocate's determination of what is reasonable. The advocate's determination of what is reasonable may be 2 o'clock in the morning, because that's when the advocate may suspect that abuse is occurring.
Mr Jim Wilson: Again, the amendment seems reasonable. This stuff isn't going to work for the vulnerable person unless there's harmony between the staff and the health care practitioners in dealing with a facility, for example. I think what we've been trying to do through many of our amendments is to take out any potential for adversarial relationships flaring up.
I think treating a facility the same as a controlled-access residence is reasonable in this regard. If the advocate does sneak in and it's only upon request that the advocate has to show identification -- we all know how busy facilities can be and how you can just walk up to any room in many of our hospitals, particularly in rural Ontario. We don't have the security you may have in Toronto hospitals, for instance.
I think you add suspicion, you introduce an adversarial relationship there. When the staff or the medical team finally discover that there's an advocate standing in the room and you introduce the scenario of saying, "Who the hell are you in this person's room?" it's only reasonable that the advocate be required, as Mrs Sullivan said, to sort of check in with the facility and the staff. They can't deny access to the vulnerable person. The objectives of the act are met in terms of providing advocacy services.
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I think you also want to balance how many rights you're trampling on in terms of vulnerable persons' rights. By allowing someone to sneak into their rooms undetected, which is the worst-case scenario, and that's what we're dealing with as legislators, you're infringing on the vulnerable person's right to privacy, you're infringing on the vulnerable person's right to be free from state intervention, you're interfering with that person's right of freedom in a general application, and I would go so far as to say you're interfering with the freedom of that individual to associate with persons with whom he or she wants want to associate.
I could probably list more if I had my Charter of Rights and Freedoms with me, but it seems to me that a lot of the rights we take for granted, you're infringing on more of those, and masking it in you want the ability to save the vulnerable person.
Mrs Sullivan touched on it too. Save the vulnerable person from whom, or which persons? First, in a facility, unless you're prepared to state otherwise, everyone is working for the common good of the vulnerable person. That's the assumption you should make, and you shouldn't have legislation that leads people who read this legislation to assume that you don't have that faith in our facilities and in the staff and the medical teams there.
Mr Owens: Just really quickly, I think we've seen quite clearly the results of not having this type of legislation. We've seen the St John's training schools, we've seen the abuse going on in nursing homes, and I'm not sure why you feel that in order to -- in your view, you want to protect people's rights. Does that include the right to be abused? That's clearly what you're saying here. You're saying that the advocate should not have the right -- you're talking about entering a building at 2 o'clock in the morning and in fact that may be a reasonable time. It may be 2 o'clock on Saturday morning when the abuse is taking place, so why is that reasonable?
Why do you want to tighten down the rights? We've seen the examples of group homes, and again, St John's training schools, where this type of legislation wasn't available to these people. How many more cases of sexual abuse do you want to have reported in the press before we can get this stuff sorted through?
You talk about rights. Yes, let's talk about rights. Let's talk about the rights of the victims as well. Your party, Mr Wilson, stands on its high horse and talks about victims' rights on a regular basis, and here we're trying to prevent victims from becoming victims and you're saying: "No, we have to be reasonable. We have to make sure that people's rights are respected." What about the rights of the patients? We're not respecting those rights by allowing this kind of activity to take place.
I think you're missing the intent of this legislation. The unsaid allegation or accusation about case-finding, that advocates are going to be running amok in health care institutions, is absolutely inappropriate. I spoke to a number of people after the presentation from Baycrest Centre for Geriatric Care, where the allegation was actually made around, "We're concerned that people may go about case-finding." My concern is that these advocates are going to be so damned busy with existing things they're not going to have time to handle their own workload, never mind having the time to sneak into hospitals and sneak into rooms.
Mr Jim Wilson: I appreciate your comments, but I just spent an hour on the phone over the lunch-break with a constituent of mine whose business has been closed down by a Ministry of the Environment inspector. What that leads me to think and what we must keep in mind is that an MOE inspector, who has rights of entry, as Mr Winninger has used them in many, many other examples of existing Ontario statutes where officers have a right to enter premises, businesses or private dwellings, has real powers to issue orders, to issue in this case, over the lunch-hour, what they call an air ticket; a clean air approval certificate must be issued. But the advocates don't have those powers, nor should they.
We spent a great deal of time during the public hearings understanding what an advocate can and can't do. Mr Malkowski said it in his own remarks. An advocate simply expresses the wishes of the vulnerable person. We've talked about the fact that the advocate can't correct a lot of the situations by himself or herself, but simply express it. In the case of a facility, I would correctly make the assumption that you express the problems to the staff and try to solicit their cooperation in correcting these things.
I'm just trying to prevent an adversarial relationship occurring where you're welcoming more problems into the mix than may already be present. I think it just defies common sense not to treat facilities the same as controlled-access residences, because the advocates can't by themselves issue orders or can't do the things that in so many of these other examples Mr Winninger gave us other officers can. We have to rely on good relations there, and I think you establish good relations by having sound legislation that doesn't have an adversarial potential built into it.
Mrs Sullivan: I'm troubled by Mr Owens's contribution to the debate because he's basically saying that the patients' rights to privacy, and in fact the patients' rights to consent to the involvement of the advocate should be --
Mr Owens: That's not what I said.
Mrs Sullivan: It is. I want to complete this because your interpretation of the role of an advocate is quite different from what the principles that we're discussing in this bill are.
You've talked about the advocate who is able to enter a situation and take action to protect that person as if the advocate were not working in a way that we have understood an advocate should be working; that is, to assist the vulnerable person himself or herself to take action.
Now surely, if we are going to be insisting -- and I hope we are going to be insisting -- that this is the approach the advocate is going to be taking, not the approach of the advocate taking independent action outside of the vulnerable person, then surely the first step is to ensure that the vulnerable person indeed wants to see the advocate and consents to the advocate entering his or her room in the hospital at that particular time.
If I'm a woman and I'm in a hospital and I'm having a pelvic examination and an advocate walked into that room and said, "I think you're vulnerable," I'll tell you, I would say I'm vulnerable too, but not for the reasons the advocate thinks I'm vulnerable.
There are times when it's absolutely reasonable for an advocate to request to meet with a patient, to be identified and to say, "Do you want to see me?" But there are times when it is an extraordinary intrusion on the rights of a person, whether vulnerable or not, to intervene and to intrude and to invade his or her privacy.
What we are asking for is a reasonable and equivalent treatment of people who are in hospitals or in homes for the aged to those people who are living in a controlled-access residence. That's what we're asking for. You've given it to one; give it to the other.
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Mr Michael A. Brown (Algoma-Manitoulin): I find this section obviously troubling. I find a lot of the bill quite troubling. I just have a short question that hopefully somebody can help me with.
Under the section as it's presently written, the advocate would have the right to go into a private room in a facility, be it a hospital or a nursing home or whatever defined under the act, if indeed he is to advocate on behalf of a vulnerable person. Could legal counsel tell me, what if in fact there's no vulnerable person there? For example, he goes in to make the determination and determines the person is not a vulnerable person. What's the answer?
Ms Mary Beth Valentine: I think the basic issue is, if I understood your question correctly, any time an individual asks an advocate to leave, he or she leaves. If there's no one there, there's no one there; there's not an issue. There's no case until the individual indicates a concern and engages the advocate.
I also perhaps could clarify that in all advocacy programs that have ever been analysed, 97% of issues that are dealt with are reactive. Either the individual himself asks for an advocate or someone else, a third party who is involved, and quite frankly, frequently a health care professional who's working in the same institution involves the advocate out of a particular concern.
So on the issue of determining vulnerability, I'm having difficulty in understanding the debate in order to be able to respond directly to that. The issue is, if someone is detained within a facility, if he's restrained, if he's unable to move, if he's in a position where he is highly dependent upon other people, such as many elderly people are, such as many severely developmentally handicapped people etc are, he is, by definition, vulnerable. They're highly dependent upon others.
Mr Brown: I guess that's exactly my problem, that this act gives an advocate the right to go into any room anywhere --
Ms Valentine: At reasonable times.
Mr Brown: Yes, at reasonable times, which, as Mr Owens points out, could be 2 o'clock in the morning for a particular instance.
Ms Valentine: Perhaps, as a matter of fact, I could give you examples of specific cases where having access at 2 o'clock in the morning has been extremely important to deal with an issue of abuse.
I think it's just not a black and white issue, that you could suggest that at 2 o'clock in the morning someone couldn't be abused in a facility for developmentally handicapped people or something of that sort. I'm trying to put the policy issue into perspective.
Mr Brown: I understand that. I'm not disputing the fact that 2 o'clock in the morning may be an appropriate time. I'm just trying to grapple with this problem that the advocate really gains his authority when there's a vulnerable person, but he decides who a vulnerable person is. If the person he has come to see is not a vulnerable person, how did he have authority to go in there in the first place? Otherwise, an advocate has the right to go into every room in every facility under this act to determine if there's a vulnerable person there.
Is that what we're hearing here? Is that what's trying to be achieved? That would be a gross invasion of many people's privacy. I accept the fact that this isn't going to happen very often, and as Mr Wilson has pointed out, we're over here in opposition looking at the worst-case scenarios. That's our job. I'm just trying to understand what --
Ms Valentine: Sir, with all due respect, the worst-case scenarios are the situations where an advocate can't get in and people wind up dying.
Mrs Sullivan: Mr Chairman, could I request a five-minute recess?
The Chair: This committee will stand recessed for five minutes.
The committee recessed at 1504.
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The Chair: I call this committee back to order.
Mr Jim Wilson: My remarks were going to be directed to a comment Mr Owens made, if Mr Owens is available to the committee. Perhaps since Mr Malkowski is here, I just want to go back to something I found fairly disturbing in the example that was put forward first by Mr Owens -- that is, that somehow the amendment, as proposed by Mrs Sullivan, would prevent advocates from visiting someone at 2 o'clock in the morning. That's a fallacious argument.
If you read subsection 17(1), it says, "An advocate is entitled to enter a facility or controlled-access residence, without a warrant and at any time that is reasonable in the circumstances, if the advocate has reasonable grounds to believe that there are vulnerable persons in the premises." I don't see how the change that's being suggested to subsection 17(2) interferes with subsection 17(1) at all, and I'd like that clarified from the government side.
Mr Malkowski: I'm sorry, Mr Wilson, could you repeat or rephrase that just for clarification?
Mr Jim Wilson: How does the amendment proposed by Mrs Sullivan interfere with the right of an advocate to enter a facility or controlled-access residence at any time he or she feels is reasonable? The example that was given Mr Malkowski from Mr Owens was that somehow this amendment would prevent advocates from visiting people at 2 o'clock in the morning if the need arose. I take exception to that example because I do not believe it to be true.
Mr Malkowski: I think it would be most appropriate to ask our legal counsel to respond to that.
Ms Perlis: Sorry, I was in a discussion with legislative counsel at the moment and I didn't hear the question. I don't know if my co-counsel heard the question.
Ms Carla McKague: The amendment that's proposed would not, of course, prevent the advocate from entering the common areas, the hallways of the facility, at 2 o'clock in the morning. It would certainly prevent the advocate from entering a private room, which might be exactly where the problem is at 2 o'clock in the morning, as at any other time of the day.
Mr Jim Wilson: I don't see that in this wording. Can you just bring me through that in the legal text?
Ms McKague: Subsection 17(2), as written, makes it clear that the right to enter -- no, the amendment would add "facility" to "controlled-access residence" in the second section, which would then read, roughly, "The right to enter a facility under this section applies only to the common areas of the facility and would specifically exclude private rooms."
Mr Jim Wilson: Okay. The second part of that is, even with the amendment, the advocate still maintains the right to meet with the vulnerable person in private, because that's contained in subsection 18(2), I believe.
Mrs Sullivan: And in subsection 17(3).
Mr Jim Wilson: And in subsection 17(3).
Ms McKague: It's actually also contained in subsection 17(3): "The advocate is entitled to meet with one or more vulnerable persons in the facility...without interference and in private." The difficulty is that it might well be that, for instance, the vulnerable person is confined to bed and the only place one could meet in private is in the vulnerable person's room.
Mr Jim Wilson: But given the role of the advocate, it still makes sense in my mind that the courtesy perhaps, as it were, be extended to the facility that it know the advocate is in the facility.
Ms McKague: There is an issue here, I believe, of the confidentiality of the relationship between the advocate and the vulnerable person. It might well be the vulnerable person's wish that other people in the facility not know that he is using the services of an advocate, and I would think he's entitled to that in the same way as the right of confidentiality around medical information includes confidentiality of the fact that you're even seeing the doctor.
Mr Jim Wilson: Given that efforts have been made over the years, in more recent times in particular, to sort of beef up security in hospitals, as an example, and nursing homes, so you can't just have people walking to people's rooms unannounced and without the awareness of the staff. I see this still as problematic.
Even in the Alliston we don't have the best security, but we've had reasons in the last three or four years to beef up security, so now we have a couple of security officers. They try to do their best to make sure people aren't just wandering into people's rooms. Now you're telling me you're going to have an advocate who can legally just wander into people's rooms.
Ms McKague: The advocate, I assume, would be subject to exactly the same security precautions as anyone else. Frankly, I would rather have an authorized advocate walking into my room than an unauthorized person off the street.
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Mr Jim Wilson: The point is that operators of these facilities, I think, have the right to know who's wandering around their halls and entering their private rooms, so doesn't it make sense that the advocate show his or her badge and then request access to the individual?
Ms McKague: The advocate is already obliged to show his or her badge upon request and, if approached by security, would certainly do so. We are very much aware, however, that with the history of the advocacy program in the psychiatric hospitals, for example, there have been a number of reports of repercussions taken against patients in the hospital because they have sought the services of the advocate. Staff who are threatened by the idea that the patient has gone to the advocate have in fact taken that out, and there's therefore a duty of confidentiality on the advocates in that program that if they're requested not to reveal that the patient is using the advocate services, they will not do so.
Mrs Sullivan: I think it's very clear that the government will not be budging, that the government will not accept what in fact are reasonable and impassioned arguments on this entire question. The amendment was put because we believe this provision will in fact interfere with rights of people who are vulnerable or people who may not be vulnerable.
Under my amendment an advocate could enter the common areas of a facility as defined in the schedule of the act and, if refused access to a patient for whatever reason -- say, in a hospital the advocate was advised at the nursing station that there was a medical consultation under way with the patient at that time and the advocate could enter at a later time, that might be appropriate.
If there were an abusive situation that had been reported, that the advocate had come to know about or that had been reported to him or her, so that there was suspicion of abuse, and the advocate was refused without a reasonable excuse -- the patient is asleep or the patient in a nursing home is being turned and lotions are being applied to ease bedsores, whatever -- if there's not a reasonable response from the people in the institution, surely that is another ground for the advocate to in fact believe that there are reasonable grounds to enter that place and that the reports that were made to the advocate have another strength of evidence. The advocate should then take himself or herself promptly to the justice of the peace, get a warrant for entry and probably bring back authorities who can deal with the kinds of abuse that we are concerned about. If it's sexual abuse, if it's battering, if it's physical injury to the patient, the advocate in those situations is going to, and in fact the bill provides later that the advocate should, take issues such as those to proper authorities.
We feel that the position of the advocate is strengthened and the privacy and the rights of the person are strengthened by this amendment. The government clearly is intransigent. In my view, people in Ontario are going to be outraged when they see this action of the government and the demands of the government for an unfettered right to entry at any time, with or without grounds that are fully substantiated and where people's individual privacy and, in my view, their charter rights are being infringed upon.
I think that every member of the New Democratic Party will have telephones that will be ringing off the hook as a result of this particular amendment. People will not understand the arguments that are being put forward, because in fact the arguments that are being put forward are not adequate to meet the arguments on the other side. We've heard nothing from the government to convince us that this is not an egregious error.
I'm prepared to vote on this, and I do so with enormous reluctance and, in fact, deepseated anger and disappointment.
The Chair: Further discussion? Seeing no further discussion, we'll proceed to the vote on the Liberal motion on alternate 2, subsection 17(2). All those in favour?
Mr Brown: A recorded vote.
The committee divided on Mrs Sullivan's motion, which was negatived on the following vote:
Ayes--4
Brown, Cleary, Sullivan, Wilson (Simcoe West).
Nays--6
Carter, Malkowski, Morrow, Owens, Wessenger, Winninger.
The Chair: We will proceed to the Liberal motion on section 18. Comments?
Mrs Sullivan: I have two motions with respect to this section. I'm not going to proceed with the first motion, which is the motion for withdrawal, but in putting it, I'd like some clarification from the parliamentary assistant to the minister with respect to the identification of premises other than premises that the advocate is entitled to enter under section 17.
We think that clarification is very important. It has not been clear throughout the public hearings what those premises are. One could assume, by example, that they could be university residences; that they could be residences of schools which have students who are 16 years of age and older, to whom this bill applies; that private homes could be included in this section; that those premises could be places of employment; that they could be educational institutions; that they could be vocational institutions where teaching is done; that they could be social or recreational centres. These are the assumptions that follow, because we've had no definition of premises.
I want to give you an example which is one I don't think we had adequate input on through the public hearings. It is the case of high schools where attendant child care workers are available for developmentally delayed children or otherwise disabled and who are now integrated into the school system. What will be the relationship between the attendant who is hired by the Board of Education and who is certainly, in every circumstance I've been aware of, also acting as a personal advocate for the individual? In fact that's part of the job.
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I think most boards in Ontario, if not all, now have those integrated systems available. Do premises include high schools or elementary schools? Frequently, children who are in these attendant care or child care programs at the elementary school level are in fact over 16. What is the relationship between the advocate in that situation, the attendant care person and the vulnerable person? Is that included? Are places of employment included?
I've indicated residences at the junior school level where there are people 16 and older. I've spoken about residences for colleges and universities. What other places are included in these premises? We've not had an adequate exploration of that. We have had very little discussion of that. I think it's extremely important that not only the committee but the public understand precisely what those premises are.
Mr Malkowski: I appreciate your comments and the concerns you've raised. I'd like to ask that our legal counsel clarify that terminology for you.
Ms Perlis: You are correct. There is no definition of premises in the act. The intent is to capture private dwelling units. I would refer you to the definitions of "controlled-access residence" and "facility" in section 2 of the act:
"`Controlled-access residence' means premises, other than a facility, where one or more persons live and that are operated for remuneration by a person who controls access to the premises."
Obviously, the intention is to capture dwelling units. It refers to premises where persons live.
The definition of "facility" under section 2 refers to "a facility governed or funded under an act mentioned in the schedule" or "prescribed by the regulations made under this act." Regulations of course are not available, so the only information we have at the moment would be by reference to the facilities listed in the schedule attached to this act and the acts listed thereunder.
Whether another premise falls within the definition of section 18 is open to some question, based on whether it would fall within a controlled-access residence definition or a facility. If not, presumably it is a premise within the meaning of the act in the absence of any more specific reference to the term. However, the intent is to capture a private dwelling unit.
Mrs Sullivan: Because it is not defined, it would not exclude, by example, educational institutions, including residences associated with them, or schools or places of employment or places where social and recreational activities take place. There is no exclusion for access to any of those places, given this definition. It was not limited to homes.
Ms Perlis: No, it is not limited to homes. The example you provided of university residences might be one which would well fall within the definition of controlled-access residence, as a premise where one or persons live, operated for remuneration by a person who controls access. I don't know what the access is now, but there was certainly controlled access to the residence I lived in as an undergraduate. It's probably changed. I think you were only allowed men in your room between 3 and 5 on Sunday or something.
No, the act does not refer specifically to any premise. It merely excludes facilities and controlled-access residences from section 18.
Mrs Sullivan: Then, given the involvement of boards of education today with people who are vulnerable and who are being assisted in realizing additional and further capabilities through the school system with particular devices, whether it's attendant care, whether it's special devices and so on, where do school boards fit into this situation, and what kinds of discussions has the ministry had with school boards with respect to the involvement of advocates in programs where young people are now receiving a service which is partly an advocacy service, but far more than an advocacy service? Has any discussion occurred?
Ms Valentine: From a policy perspective, I think, as you're aware, that there's not anyone in the room at the moment who has had the long, early background in the policy discussions. I am aware that the Ministry of Education has been involved in some of the more recent discussions -- by that, I mean this spring and summer -- partially when there was concern as to whether the act was going to be addressing children under 16 years of age, and partially when the issue of those over 16 was raised.
The Ministry of Education itself: I have no idea whether it has consulted with the school boards or administrators in schools etc. Their perspective was hopeful that advocates would be able to provide some assistance at times. Certainly, again, the informal types of discussions were that an advocate may be able to have information that could help to steer someone in another direction -- make a referral, make a connection, those sorts of things -- but if there were a particular problem, that perhaps there might be times when for a disabled person an advocate would be able to serve as a resource that is not available to people now.
The discussions, certainly, that I was involved with didn't take the tone of, "Would an advocate be able to or not able to enter into a school?" I think any school is considered a controlled-access facility. Someone can't just automatically walk into a school or into a classroom or whatever.
I don't know that I'm specifically answering your question. I'm not intending to dodge it. It's just that this is to the best of my knowledge.
Mrs Sullivan: I appreciate that response, but I think it really does underline some of the difficulties we're having with this bill in that we are under such time constraints. We are under such time constraints with the public hearings process where we're dealing with four bills at once, where a provision like this will affect many other areas of society and where there has been no discussion that is publicly available and no consideration of the issues and balancing of the issues from one to the other in respect of our discussions. I think that's highly problematical and takes us right back to the whole issue of time allocations in dealing with these bills.
Had there been additional time in the public hearings, we probably would have heard from the school boards, by example, and from the recreation associations, which are moving more and more into the support of recreational programs for disabled people. We probably would have had had discussions with colleges and universities with respect to the interrelationship of advocates in terms of the work that they're doing.
Frankly, in the government's own presentations, which have been limited, really, to the minister's prepared text at the beginning, there has been no reference to anything other than the residence aspect when there are many other areas where advocacy services would be useful and helpful and where those advocacy services should be individual rather than only systemic.
In raising this whole question of what a premise is and what the parameters of this bill are, it appears that as we are now in the wee hours of concluding discussion, we find that the parameters of this bill are far greater than have been discussed through the entire public hearings process and through any discussion of the clause-by-clause so far. I think that is a terrible shame.
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Ms Valentine: Ms Sullivan, perhaps I could draw your attention to something. It certainly doesn't address the issue of schools that you were referring to, but the issue of programs, for instance, has been specifically addressed in relation to Ministry of Community and Social Services and Ministry of Health programs, because that is where the bulk of the funding comes from for rehabilitative programs, things of that sort. That's addressed in clause 36(1)(e.1).
Mrs Sullivan: I understand that it's included in the bill, but my point is that there has been absolutely no discussion, either of programs or premises, before the committee, and I think all members of the committee would agree with that. We have missed entire significant portions of this bill.
Mr Jim Wilson: Just to clarify, is Mrs Sullivan withdrawing her amendment dealing with section 18 or are we going to be voting on that, ie, to have section 18 struck?
Mrs Sullivan: Now that we've had the discussion, I'll withdraw it.
The Chair: Thank you, Mrs Sullivan.
Mr Jim Wilson: That makes sense, Mr Chairman, because then those of us who don't like section 18 can just vote against the government reprinted 18.
The Chair: Mrs Sullivan, on your Liberal motion on subsection 18(1.1).
Mrs Sullivan: This one I'm definitely going to be leaving in, with respect to entry to private dwellings, under section 18. I'm making an amendment that would indicate that despite the provisions of subsection 1 of section 18, which gives the advocate the right "to enter premises other than premises," which we have just had clearly defined as private dwellings, the advocate would not be entitled to enter a private dwelling without a warrant for entry.
Mr Jim Wilson: I'll be supporting this amendment on behalf of my caucus. As you know, we had put forward an amendment with the exact wording as the Liberal motion, and I'll be supporting it.
A number of highly credible groups suggested to this committee that a warrant be required for entry into private dwellings and that emergency entry can be made by the police using normal police powers of entry without a warrant. I think this is an important safeguard. In spite of what other precedent might be out there, I think it's a tremendous intrusion upon people's rights to privacy to simply have advocates deciding for themselves to enter private premises, and there must be a safeguard. The warrant, I think, is sufficient and necessary.
I don't think you can blame us for thinking this way when we don't have a high degree of confidence in the training and role of advocates, because clearly from the clause-by-clause discussions we've had to date and the committee hearings, as Mrs Sullivan has correctly pointed out, the scope of what these advocates are to do, the scope of their duties seems to vary depending on whom you talk to on this committee. When you talk to some of the government members, it seems that advocates are envisioned to have more powers than what the act actually gives them, and we've yet to see any amendments really dealing with the training and qualifications of advocates.
Given that low degree of confidence in the role of an advocate, I think it's reasonable to protect the public and to protect their right to privacy by requiring advocates to appear before the judiciary and obtain a warrant.
Mr Winninger: We discussed this issue a little yesterday. I think I still hold to the view that this section does meet your concerns, because if the property owner declines entry, then the advocate does have to seek a warrant under these circumstances. Why force every advocate to go and get a warrant, when the property owner might be quite amenable to offering entry? I don't see it as being necessary.
Mr Malkowski: The government will not be able to support this motion, for the same basic reasons as were cited before. The advocate needs to be able to contact the vulnerable person, regardless of where he or she lives, but as mentioned, he cannot use force. There is also no penalty to the owner of the dwelling should he refuse entry.
Mrs Sullivan: I want to respond to the point made by Mr Winninger, who says that if the owner or occupier of the private dwelling refuses access, the advocate cannot enter without the warrant. In fact, that's not what the bill says. The bill says there's an entitlement to entry, whether or not there's consent, and that entitlement is a very different situation from the owner or occupier of a dwelling saying: "Hello. You're an advocate. I'm glad to see you. Please come in."
I think there's a very different scenario that we're looking at here. Many of the arguments that I would be placing on this motion with respect to the invasion of privacy and property were put with respect to the previous amendment, but the entitlement here is very different from the provision of consent.
Mr Jim Wilson: Just following on that, and also in response to Mr Winninger's comment, I can clearly see the case where perhaps an owner or occupant of a private dwelling isn't aware of the right to refuse the entry of the advocate. That raises the question, are advocates required to inform the owner or occupant that he or she has the right of refusal? If not, when seeing someone in a power position come to the front door and demand entry to their house, people may be inclined more often than not to say, "Well, I guess you can do this, so come on in and do whatever it is you have to do."
I want to know whether there's a requirement of the advocate to inform the occupant or owner of the right to refuse entry.
Ms Perlis: The bill does not specifically impose such a requirement on the advocate.
Mr Jim Wilson: I was aware of that, but I'm just wondering --
Interjections.
Mr Winninger: You're so rhetorical.
Mr Jim Wilson: I'm just wondering if Mr Winninger is aware of that and if the government is comfortable with that.
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Mr Winninger: I'm comfortable with the provisions under section 19, which basically entitle the owner to request, I suppose, that the advocate go and get a warrant.
First of all, I think there are many safeguards built in here for the property owner. The advocate has to have reasonable grounds to believe that certain facts exist, as set out in clauses (a) through (c). So there is a test there. And if the owner stands his ground, then the advocate has to seek the warrant. I don't know that you need to spell out property owner rights, although in canvassing politically I've gone to many apartment buildings run by Conservative or Liberal owners who didn't want to let me in and often I had to point to the text of the Landlord and Tenant Act, which said I could get in there to do my political canvassing.
Mr Jim Wilson: Into the common areas, you might recall.
Mr Winninger: No, to get to apartment buildings.
Mr Jim Wilson: Yes, but only to the door.
Mr Winninger: To get to apartment doors.
Mr Jim Wilson: In the common areas; read the act.
Mrs Sullivan: That's right. The act says the common areas.
Mr Winninger: Right, but all I'm saying here is that there is a safety valve which requires the obtaining of a warrant. I think there are protections built in. I don't know why you would want to change those protections.
Ms Jenny Carter (Peterborough): Maybe we should just pursue that analogy. I mean, if you get in because you're canvassing and you knock on the door and the person opens the door, he or she can invite you in and have a chat and give you a cup of tea or slam it in your face. We're in exactly the same situation here, because if the person in that room doesn't want to speak to you, you go away. If they want you to come in and have a cup of tea, you do that too.
I must say that I feel we're getting very much out of proportion here in our consideration of invasions of privacy, because any inconvenience or bother that is going to be caused by somebody knocking on a door and asking if he may come in is so minimal, compared to the opposite possibility, which is that there might be somebody in that house in dire need of assistance, and we're looking here at setting up barriers.
Do we really have such wonderful rights to privacy? I get people phoning my house wanting to sell me things, I get people coming to the door on all kinds of nuisance errands, and all I have to do is say, "Go away," but they've already interrupted me at supper or whatever it is. That happens all the time, and that's all that could happen in this case. You might let them in to see somebody in the house, and, as I said, all that can happen is that either they have a conversation with that person or they're immediately asked to leave. What is the big deal here? I just don't understand it.
Mr Jim Wilson: I purposely used the terminology in my remarks, someone who's in a position of power. A canvasser's not in any position of any power, and neither is a solicitor at your house.
Ms Carter: Neither is an advocate. They leave on request.
Mr Jim Wilson: I would think an advocate showing up with a badge with this act behind him might be rather intimidating to some people, and yes, I happen to hold the right to privacy --
Ms Carter: Jehovah's Witnesses might be intimidating to some.
The Chair: Please, Mrs Carter, Mr Wilson has the floor.
Mr Jim Wilson: I happen to have high regard for the right to privacy and think that errors have been made in the past and legislation has been passed that has infringed upon that, I think very much unnecessarily.
But having said that, Mr Chairman, I am prepared to vote on this, because I sense the government's not going to support this amendment.
Mrs Sullivan: Just before we proceed to a vote, I want to correct the impression Mrs Carter has left that the property owner can say, "No, I don't want to see you; you're interrupting me," and so on.
Interjection.
The Chair: Mrs Carter, please. Mrs Sullivan has the floor.
Mrs Sullivan: That is not the case. It's the vulnerable person who must consent to the entry, and in fact the property owner, the person who owns the facility, the parent of the child or the son or daughter of the senior citizen has no right to exclude entry to an advocate. The entitlement is there under the bill. We are saying that with this amendment the advocate, to have that entitlement, should have a warrant for entry. That's what the police have.
The Chair: Further discussion? Seeing none, we'll proceed to the vote. On the Liberal motion on subsection 18(1.1), all those in favour?
Mrs Sullivan: A recorded vote.
The committee divided on Mrs Sullivan's motion, which was negatived on the following vote:
Ayes--4
Brown, Cleary, Sullivan, Wilson (Simcoe West).
Nays--5
Carter, Malkowski, Owens, Wessenger, Winninger.
The Chair: Liberal motion on subsection 19(1).
Mr Jim Wilson: Mr Chair, did we vote on 18?
The Chair: That's the whole section. We've agreed to leave the sections open.
Mrs Sullivan: In subsection 19(1), we've added areas to the rationale for a justice of the peace to issue a warrant. In fact, it expands the opportunity of an advocate to receive the warrant. The expansion in both this amendment and the next one -- these are separated because we have parts of section 19 that are still left in. The rationale for the granting of the warrant more clearly coincides with the purposes of the advocate's involvement, so this motion and the next motion, but in particular this one, would expand the rationale for the issuance of a warrant to an advocate rather than simply saying the warrant should only be issued under circumstances. These are, in fact, additional circumstances under which the warrant could be issued.
Mr Malkowski: The government will not be able to support the motion.
Mrs Sullivan: Could we have a reason?
The Chair: Would you care to respond, Mr Malkowski?
Mr Malkowski: For the following reason: We believe the reasons are adequate when read in conjunction with section 18 and reasonable grounds in section 18 for warrantless entry.
Mrs Sullivan: I would appreciate further expansion of that rationale.
Mr Malkowski: Maybe I can ask that we have legal interpretation of that from counsel.
Ms Perlis: Section 19 requires that the justice of the peace be satisfied that the advocate has been prevented from entering in accordance with subsection 18(1). Subsection 18(1) imposes the duty on the advocate essentially to have reasonable grounds to believe that either (a), (b) or (c) is in existence in order for the advocate to enter without a warrant. So the justice of the peace, with reference to clauses 18(1)(a), (b) and (c), must be satisfied that the advocate has reasonable grounds to exercise a right of warrantless entry.
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Mrs Sullivan: The justice of the peace, therefore, does not have to be satisfied that there are reasonable grounds to believe that there is a risk of serious harm to the person, that the services of the advocate are wanted, desired, wished for, and in fact that the purposes of the act, which would still remain as included in (b), would be fulfilled?
Ms Perlis: I believe this section states that the justice of the peace would have to be satisfied that the advocate has reasonable grounds to believe that he or she is entitled to enter without a warrant under the grounds enumerated under subsection 18(1) or has been prevented from meeting with the person without interference and in private under subsection 18(2), but the reasonable grounds test would apply to the advocate's possession of those reasonable grounds.
Mrs Sullivan: Well, under subsection 17(1) the reasonable grounds are that there's a vulnerable person on the premises, whether or not the vulnerable person requires assistance or wants it.
Ms Perlis: Correct. I was referring specifically to section 18, but you're also correct. The justice of the peace would have to be satisfied that the advocate had reasonable grounds under subsection 17(1) to believe that there were vulnerable persons in the premises.
Mr Jim Wilson: With respect, I think we're splitting hairs here. I think the government bill covers the ground precisely, as contained in the Liberal motion, and I'm quite satisfied with the wording contained in the reprinted bill. I won't be supporting the Liberal motion on that account and would ask Mrs Sullivan to take our word for it that it's well covered already. Otherwise, we're going to be here for ever.
The Chair: Further discussion? Seeing no further discussion, we'll proceed to the vote on the Liberal motion on subsection 19(1). All those in favour? Opposed?
Motion negatived.
The Chair: Next is the Liberal motion to subsections 19(6) to (8). Comments?
Mrs Sullivan: Once again, these are further additions to the conditions with respect to the warrant which would indicate that (a) the warrant would enable the advocate to enter the common areas of the premises, (b) a private room in a facility or controlled-access residence or a private dwelling unit could not be entered without the consent of the vulnerable person, and (c) once again that the advocate must leave if the vulnerable person indicates that he or she does not want the services of the advocate.
I point out to you that subsection 18(2) is not now included in the warrant provisions, and this would enable the advocate to enter the premises even if the person indicates that he doesn't want the services of the advocate and that therefore the act would require that the advocate must leave the premises promptly.
Mr Jim Wilson: We'll be supporting this amendment but I don't really think it's necessary to stretch out this debate. Many of the points I would make are similar to those made previously in our discussion regarding access to facilities and controlled-access residences. Suffice to say that we support the amendment, although I suspect it's not going be adopted by the government.
Mr Malkowski: The government will not be able to support this amendment for the following reasons: This would have the effect of removing all rights of entry to a private dwelling, even with a warrant, and in addition would require the consent rather than the consent and acquiescence of the vulnerable person. In addition, this would, for instance, prevent the advocate from entering if the vulnerable person in fact does not indicate consent or refusal.
Mr Jim Wilson: If I may, Mr Chairman, I'd like at the very least to congratulate my colleague from the Liberal Party, Mrs Sullivan, for having tried in vain with three or four different approaches to get what we want to see in these sections of the legislation. I commend her for her valiant efforts and I'm sure the history books will note such.
Mrs Sullivan: If not the news column for the paper.
The Chair: Further discussion? Seeing no further discussion, we'll proceed to the vote on the Liberal motion on subsections 19(6) to (8). All those in favour?
Mrs Sullivan: Recorded vote, please.
The committee divided on Mrs Sullivan's motion, which was negatived on the following vote:
Ayes--4
Brown, Cleary, Sullivan, Wilson (Simcoe West).
Nays--6
Carter, Malkowski, Morrow, Owens, Wessenger, Winninger.
The Chair: Next we'll proceed to the Liberal motion on subsection 24(2). Comments, Mrs Sullivan?
Mrs Sullivan: This amendment is put forward because we're now moving into the entire question of access to clinical records, medical records, records maintained in any of the facilities, programs, controlled-access residences and so on.
We have heard today that -- in fact we don't know what programs are included in this right to access of information, whether those programs will include educational programs, vocational programs, housing programs and recreational programs. We do not have the full extent of information before the committee about what access to information will be provided in this bill without the person's consent. We don't have information about the full nature of the premises from which that information can be taken, what controlled-access residences, for example, would be included.
We also have grave concerns about third-party access to private medical and clinical records which would be in the custody of a facility. That's the reason for this amendment being put forward, and we feel strongly that the original portion of the bill is too broad and we have too little knowledge about its effect.
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Mr Malkowski: The government will not be able to support this motion for the following reason: It would be difficult, if not impossible, to provide uninstructed advocacy without access to records concerning the vulnerable person. Also, non-instructed advocacy in fact will occur only where there is a risk of serious harm.
The Chair: Seeing no further comments, we'll proceed to the vote on the Liberal motion on subsection 24(2). All those in favour? Opposed?
Motion negatived.
The Chair: Next, the Liberal motion on subsection 24(3). Comments?
Mrs Sullivan: My comments with reference to this motion in fact relate to the vote on the last motion. We're hopeful that there will be a fuller examination, and there are other sections of the bill where we'll be able to do that with respect to the entire issue of providing consent, of substitute decision-making for consent or of access to medical, clinical or other records without consent, either from the vulnerable person or from an appropriate substitute.
I'm withdrawing this motion -- there was a misunderstanding when it was drafted -- and I will be withdrawing the next motion, but I hope that we will able to have that discussion. We have major concerns about the entire access-to-records question.
The Chair: So you're withdrawing subsections 24(3) and 24(4).
Mrs Sullivan: Subsections 24(3) and 24(4).
The Chair: We'll now proceed to the Liberal motion on section 24.0.1. Comments?
Mrs Sullivan: Have I read this into the record?
The Chair: Yes, you have.
Mrs Sullivan: I suppose this motion is probably as good a place as any to start in terms of the discussion about the entire access-to-records issue. We know that for many years there has been a changed attitude to access to records generally of people, whether capable or incapable, in the medical field. It's really fairly recent practice that physicians share portions of the medical or clinical record with patients themselves and that those records indeed are not totally considered and only considered a physician's property or the property of the facility.
I think it's a very positive move that the thinking has changed so that the records indeed are available to the person who is concerned, to whom treatment is being provided, who has consented to that treatment, and that the patient can himself or herself determine the disposition or use of those records.
There are very few other statutory provisions that would require or even promote the dispersal of individual patient records on a statutory basis. I believe one of the very few is the Workers' Compensation Board provision. There are limitations on where and how those records can be distributed, how they can be used, and there are conditions with respect to privacy associated with their use. There are certainly other provisions in the Mental Health Act that are considerably important and that were developed after an enormous amount of thought and work in that area.
One of the essential issues in determining the provision of and the ability to access records relates to a person's ability to consent to that access. This amendment is designed to provide a detail of the capacity of the person to consent to a third person having access to those records. I think this is important to be included and it's important that the person who is providing that consent should have every essence of appeal and every check available to him or her if there is a determination made that the person is incapable of consenting to those records; therefore, other steps in the bill can fall into place.
The records can be accessed without consent and they can be disposed of and communicated to other people with minimal limitations and without consent. As a consequence, I wanted to underline the importance of the test of capacity for consent to access to records and provide a method whereby the person would have redress if a determination was made that the person was incapable of consenting.
The rationale for the bill: I think it is straightforward in terms of indicating the issues, the test by which the person could be judged capable or incapable and the option of an assessment through an assessor under the Substitute Decisions Act. We would certainly like to know more about who, what, where and when, but there is the protection that the advocate can obtain and must obtain an assessment so that the advocate himself or herself is not making that capacity determination, and there is a right of appeal if the vulnerable person disagrees with that determination and a stay on the ability of the advocate to act until all of those rights in that process are through.
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I think this is an important amendment. I think it fits well with the Bill 109 provisions with respect to capacity to consent and issues in Bill 108 which will be coming forward, indicating, by example, that a person can be capable of making decisions although that person may not be capable of personal care him or herself.
This amendment also does not eliminate the role of the advocate in assisting that person to express and to understand the issues associated with providing consent. There's no limitation on the advocate's involvement with the person. It assumes that the person will be making the decision, with or without the involvement of the advocate.
Mr Jim Wilson: Members will note that we had drafted a similar amendment to the amendment now proposed by Mrs Sullivan. Subsequently we've withdrawn that amendment. The only difference between the Liberal amendment and the PC amendment was our stipulation that under the appeal process the vulnerable person also be advised of the right to have a lawyer.
Again, echoing what Mrs Sullivan has already stated, we feel that the access to records and the power given to the advocate in this section of the bill is really quite overwhelming. I think the motion, if considered by reasonable people, tries to build in some safeguards, tries to ensure that if the person is deemed to be vulnerable by the advocate, there's a check on that by an assessor.
You may have a case where a person is capable but not really able to consent to advocacy services, or certainly to consent to an access to records by an advocate, and therefore the advocate may assume that person is vulnerable and incapable.
Again, given that we're unsure of the training of advocates, and going back to the discussion we had during public hearings on the difficulty in properly assessing individuals, it seems to me that it's reasonable to have a check in here, as suggested in this amendment. We'll certainly be supporting the amendment.
Mr Malkowski: The government will not be able to support this motion for the following reason. The motion is not necessary and could in fact result in an inordinate amount of time spent determining the question of records access. It's not necessary to have a process around determination of capacity to give access to records. The important question here is that of capacity to instruct the advocate. It should also be noted that currently there is no test, under the Public Hospitals Act, for example, of a patient's capacity to authorize third-party access to records.
Mr Winninger: Just a brief addendum to what Mr Malkowski said. I had some concerns about this section too, particularly if the vulnerable person may be objecting to disclosure of his or her records. But my anxiety, I think, was set to rest by reference to section 15.1, which we've been over before. Basically, it provides that an advocate providing advocacy services to a person "shall not do anything that is inconsistent with the person's instructions or wishes," and that would have to extend to access to records as well. So I think there's a safeguard there for the vulnerable person that puts certain constraints on what an advocate is able to access by way of records.
Mr Jim Wilson: I just have a question on section 24. Are the records on an individual which are contained in a private medical practitioner's office covered under "facility"? I just wanted to clear that, because I think I asked a similar question during public hearings. "Facility" really is a hospital, nursing home and public facilities as such. That's the only question I had. I think I've just answered my own question through some nods from the government side.
Mr Malkowski: Yes, and just for further clarification, I can refer that to our legal counsel.
Ms Perlis: That's correct. The reference to "facility" is to facilities that are funded or regulated by any of the acts listed in the schedule, and essentially we're talking about hospitals and other institutions.
Mrs Sullivan: I'm interested in the point Mr Winninger made with respect to the question not being the capacity to consent but the capacity to instruct. In fact, the request for access to the records comes not from the patient but from the advocate, and the advocate is then the prime mover of this action.
It is the advocate who is asking the consent of the person, to the best of the ability of that person to express that consent, so that the advocate can then take action, which is to access that record. Once that record is accessed, the advocate has powers to use that record in various ways. The consent, therefore, to the access implies an instruction, but it is not the only portion of the decision that's being made. The consent is a different action that's being taken by the person than the instruction which will follow. The instruction which will follow will come as a result of the advocate having received the record.
The Vice-Chair (Mr Mark Morrow): Any further comments or questions?
Mr Malkowski: I'd like to refer that to legal counsel for clarification.
Ms Perlis: Nevertheless, the action of the advocate in seeking to access a record with the consent of the vulnerable person is ancillary to the provision of advocacy services to that person. Therefore, the advocate must already have received instructions from the person, at the very least, to engage him or her in providing services in an instructed situation. So the advocate does not obtain consent to access a record, then go and access the record in the absence of providing services to that person. That's a condition of section 24.
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Mrs Sullivan: I think that's one of the reasons this amendment is here. An instruction from a person which says to an advocate, "I need your assistance in this area to do certain things," is not an instruction to an advocate to do things such as obtain without additional consent and then use medical records with a separate consent.
In fact, I think the situation is that the original instruction, which may be vague -- it may be quite detailed, but it may be vague -- is by itself an adequate consent for an access to a record which includes deeply private and personal information about that individual.
It may also, depending on the circumstance, include deeply private and personal information about that individual in relation to other people. I think, by example, of situations where, as part of a medical, clinical record, a physician may indicate that there are stresses within the family that are contributing to circumstances that may or may not be adding to an illness or a disability or a response. They may not be situations which would lead to an accusation of abuse, but indeed there is more to a clinical or medical record than simply, "On Tuesday John received a polio shot, and on Wednesday John received a prescription for penicillin."
The information that's included in those records is highly personal, and, in my view, a specific consent and a specific undertaking that the person knows what that consent involves is very necessary. For a person who's not vulnerable, we would not ask less.
Mr Jim Wilson: I would like to know, first, why the government would object, particularly in the Liberal motion, to the appeal provision and the notification of the finding of the assessor in that case, and, second, why it doesn't want an assessor either reconfirming or turning down the finding of the advocate.
One of the counsel for the government today referred to professional advocates. The sentence used was: "I'd rather have a professional advocate coming into my room than somebody wandering in off the street." I recall yesterday having the argument that these people weren't professionals, that we couldn't have a disciplinary body for them because they weren't professionals and this wasn't a profession, so I can't help being suspicious about a lot of this stuff when little things slip out, whether intentionally or unintentionally, from government members about what is behind this and what the true intentions are.
It's prudent for you, as members of a provincial Parliament, to build into this as many safeguards as possible. People aren't going to go running to the Advocacy Commission with their complaints; they're bloody well going to pick up the phone and blast an NDP member about what in the world these advocates are doing in their lives. That's before we get around to repealing all this stuff.
Having said that, I'd like my questions answered, because I thought long and hard about this when we were drafting a similar amendment. I find it all to be very reasonable, but I also find that, to date, my judgement of what's reasonable hasn't been matched by the government's judgement of what's reasonable.
The Chair: Further discussion?
Mr Jim Wilson: I'd like an answer to those questions. I had two questions in that rambling.
The Chair: Is there a response to Mr Wilson?
Ms Perlis: Could he repeat the questions?
Mr Jim Wilson: I don't think you should answer it, first of all. I think it should come from a political member why they object. For instance, I can see People First, who object on a first basis. They object to being labelled vulnerable. Now they're labelled vulnerable and people have access to their records and an advocate can disseminate that information. Why not give them at the very least -- you wouldn't give them anything else -- the appeal process so they can take the time that will be required to communicate the fact that they're not vulnerable? Give them the appeal process so that they have the opportunity to be heard.
I think it's just very reasonable. You've not really been responsive at all to much of what we heard from them on two occasions, and People First come to mind when I read this very reasonable motion that's been tabled.
The Chair: Response?
Mr Jim Wilson: The silence --
The Chair: No silence.
Mr Winninger: I don't have any difficulty with this, because I can distinguish situations where you do need an assessment and a review-type arrangement as to capacity in cases where you're being admitted to a mental facility against your will, in cases where you're going to be treated against your will, in cases where you're deemed to be incapable and you're going to be subject to a guardianship order or possibly, I suppose, validation of power of attorney. These are more intrusive procedures where you may well want some safeguards as to a finding of incapacity.
Here you've got an advocate who's there to help a vulnerable person and is seeking the necessary information to enhance his or her ability to help that vulnerable individual. I don't see the need for the kind of safeguards that you do, and I guess we're just on different wavelengths when it comes to that issue.
Mr Jim Wilson: Just dealing with this whole issue of access to records on it, I say with respect to the government members, I don't think you appreciate the regard that's held by the public for the right to privacy. I went through it when I worked for the federal government and we fooled around with social insurance numbers. You must know, through people in your own offices and as a lawyer, the high regard people have for this. I think the onus is on legislators to do everything they can to say, "Yes, advocates must have access to records to do systemic advocacy and to help vulnerable people, but can we not agree to put in the safeguards?" People do have a tremendous and very deeply held respect for privacy.
I think of that in the case of people living with AIDS and the issues we're dealing with in the 1990s and we'll deal with in the next decade of insurance companies and some of the terrible things we've seen in the United States with information coming out of private records and decisions being made in board offices of insurance companies, which is abhorrent.
There's a slippery slope here. I can think of many examples, but you don't have the necessary safeguards in dealing with people's private information held by a facility or a controlled-access residence. I think the state has that obligation.
If you want to stand this down and survey your constituents, I can bet they would come back and overwhelmingly say, "Yes, do everything you can to protect our privacy and try and come up with a reasonable balance." I don't think the bill as it stands in the reprint is reasonably balanced. I think we need some safeguards.
Mr Wessenger: I would just like some clarification from counsel with respect to some interpretation of this whole question of access to records. It would seem to me the vulnerable person has a fair amount of protection here, but maybe I'm wrong, so I just ask the question to clarify.
If the vulnerable person expresses a wish not to be served by an advocate or not to have the advocate do anything on his or her behalf, does that apply to an incapable vulnerable person expressing a wish, or just to a capable vulnerable person expressing a wish?
Mrs Sullivan: That's part of the question.
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Ms McKague: I think the answer is found in Mr Winninger's favourite section, section 15.1, which, to remind you once again, reads, "An advocate who is providing advocacy services to a person shall not do anything that is inconsistent with the person's instructions or wishes."
First of all, a wish to discontinue the advocacy service would certainly fall within that description and, second of all, this section does not say "a capable vulnerable person." It says "a vulnerable person." Even an incapable vulnerable person may, on my reading of the act, decline advocacy.
Mr Wessenger: Thank you. That was my interpretation, but I just wanted some confirmation.
The second question relates to the question of whether a person is capable or not. Let's just say the situation involves a request for the records of a "incapable vulnerable person" being received. Wouldn't the facility have to make its own assessment of whether that person was capable or not capable? Is that correct?
Ms McKague: If it were obtained under the consent of the vulnerable person --
Mr Wessenger: I mean without the consent.
Ms McKague: Without the consent of the vulnerable person, the advocate would have a right, in the situation of non-instructed advocacy -- where there's a risk of serious harm, the advocate has that right without consent in the non-instructed situation.
In the instructed situation, if you have a person who's capable of instructing you and capable of consenting to release, we have no problem. The problem that would arise, in my opinion, under the proposed amendment would be where you have someone who is judged capable of instructing an advocate but incapable of consenting to release of records.
If the person, though incapable of consenting to release, wanted the records released, there would appear to be no way under the act for that to happen. You would have a deadlock where the person could instruct, so that the advocate couldn't obtain the records through the non-instructed section but couldn't consent, so the advocate couldn't get the records through the instructed section either. If the person said, "No, I don't want you to get my records," then the advocate couldn't do that, whether the person was capable or not.
Mr Wessenger: What would happen in the circumstances where there was a dispute with respect to the question of whether the person is incapable of giving or refusing consent? How would that be resolved? Is there a way?
Ms McKague: I can't give you the answer to that immediately. Perhaps you would be willing to wait while I do a little conferring and could proceed, and I can come back to that question.
Mr Wessenger: Yes, I'd appreciate that.
Mrs Sullivan: The issues that we're discussing here, I think, are important. The advocate is the person who in fact is now making the judgement with respect to the vulnerability of the person. A vulnerable person is defined as a person who has difficulty expressing his or her wishes or ascertaining or exercising his or her rights or who is unable to do so.
A vulnerable person is not necessarily an incapable person. However, under this act the advocate is also making decisions with respect to the capacity of the person. If the advocate is making decisions with respect to the capacity of the person as well as the vulnerability of the person, then the advocate, in making those decisions, can in fact override what the person's own view of himself or herself is, if the person says, "Yes, I'm vulnerable, but I'm not incapable and I want some mechanism to enable me as a capable person who has a difficult time expressing myself to be assessed, so I can prove that in fact I can consent to a third person accessing my medical records or other records and using those records in a way in which the advocate can do, if the advocate believes I am incapable of instructing the advocate in any way the advocate sees fit, believing that the advocate is working for me."
Mr Jim Wilson: I couldn't agree more with what Mrs Sullivan has just said. With the powers that this act gives to the advocate, we have essentially what I call one-stop decision-making and it's with the advocate. Again, I plead the case that there should be, at least in the case here of access to records, an appeal process and there should be a qualified assessor involved because -- if the answer to Mr Wessenger's question is ready, I'd be very interested in hearing it, because it was a question I was going to ask a few minutes ago myself.
The Chair: Is the answer ready?
Ms McKague: I'm sorry. I have to wait to speak to Ms Perlis.
Mr Winninger: We talked about section 15.1, but I'd like to come back to a point that counsel made after that. Under the uninstructed advocacy provision in subsection 24(2), one of the criteria, as I read the section, that has to be present is a risk of serious harm to the health or safety of the vulnerable person. We've had much debate about the emergency provision in the Consent to Treatment Act, Bill 109, and the need for expedited procedures to deal with emergency treatment. If indeed there is a risk of serious harm to the health or safety of the vulnerable person, we can hardly expect to delay the access to records in the way your recommended amendment delays access to records.
Mrs Sullivan: Just for Mr Winninger, who goes back to 15.1(1), the access to records is not from that section, the access to records without consent comes from 24(2).
Mr Winninger: That's what I just referred to, but I'm saying that 15.1 limits the ability of an advocate to do things against the wishes of the vulnerable person and that applies to 24(2) as well.
Mrs Sullivan: But in fact now we're not talking about doing things against the wishes of a vulnerable person. Subsection 24(2) says there must be explicit consent, and if there isn't explicit consent to access the records, the advocate has to believe that the vulnerable person is incapable, ie, make a judgement about the capacity of the person. I am suggesting that this amendment will provide a guideline on what is appropriate capacity about which those judgements can be made and in fact requires that there be some expertise in making that judgement.
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Mr Winninger: We're dealing with situations of risk of serious harm. This cumbersome appeal procedure, review procedure, will delay access to records the advocate needs to carry out the important work in that situation.
Mrs Sullivan: So the advocate can barrel ahead without --
The Chair: Mr Wilson.
Mr Jim Wilson: But maybe in the case of accessed records, the introduction of the possibility of delay isn't such a bad thing, given the seriousness and the regard for privacy of records. These are records the vulnerable person probably has never seen and has never consented to. These are records made by strangers in that person's life at times. I don't know, when my grandmother is in a nursing home, what kind of records they keep on her. She doesn't know. But now this advocate will know, and I just find that problematic and I just simply don't like it.
Mrs Sullivan: It appears that there are reservations about this section among the government members as well. Should we stand it down? We haven't had a discussion from counsel.
Ms McKague: We have the answer to the question that was asked, if it would be appropriate at this time.
Mr Jim Wilson: In the answer, could you repeat the question too?
Ms McKague: The question was as to hypothesizing a situation in which the advocate's view was that the person was capable of consenting to access to the record and the facility's view was that the person is not capable of consenting to access; how would that difference of opinion be resolved?
The answer is that in those circumstances, under section 28 the advocate would seek a warrant for access to the record, and in order to obtain that warrant, the advocate would have to satisfy the justice of the peace that the advocate was entitled to access under whichever section was relevant. Included in that would be that the advocate had to satisfy the justice of the peace that the person was capable of giving the access.
Mrs Sullivan: That doesn't beg the question that we have an advocate, with or without the training and expertise, making an assessment of capacity to determine whether in fact the person is able to provide consent to access to the record under 24(2)(a). I don't know what kind of courses we're going to be giving advocates, but I'm telling you, they're going to be taking 20 years in school to cover all the occasions here. Why not involve people who are specifically trained as assessors in providing due process for the person whom an amateur advocate may consider incapable but a person who is trained in the area may say is capable?
The Chair: Further discussion? Seeing no further discussion on the Liberal motion on section 24.0.1, we will now proceed to the vote.
Mrs Sullivan: Recorded vote, please.
The committee divided on Mrs Sullivan's motion, which was negatived on the following vote:
Ayes--3
Cleary, Sullivan, Wilson (Simcoe West).
Nays--6
Carter, Malkowski, Morrow, Owens, Wessenger, Winninger.
The Chair: We will now proceed to the Liberal motion on 24.1. Comments, Mrs Sullivan?
Mrs Sullivan: This section relates, again, to the request for access to records, and deals with the situation from the point of view of the operator of the facility or the program or controlled-access residence. It provides that facility with a process through which it can withhold all or part of the record after an appeal, if that appeal to the Consent and Capacity Review Board is upheld. The board can then specify whether all the records should be released, a portion of the records should be released or only some of the records should be released.
This kind of protection is in fact included in other areas under the Mental Health Act and is an additional protection. In this bill we have some protections with respect to the withholding of information from the person himself, but the identification of the record, the nature of the record, is going to have to be quite specific. Without knowing the specific nature of the record, the wording of the request for the record may in fact mean that a different record or a fuller record than is actually needed for the purposes of advocacy may be brought forward.
I think those of us who are familiar with the implementation of the Freedom of Information and Protection of Privacy Act will recall that it took about two and a half years, probably, to define the nature of records and the extent of records so that the specific record that will be applied for would be clear not only to a person who was requesting the record but to the program or ministry or community that was obligated to provide that record or to appeal to the privacy commissioner to withhold the record. This is a similar kind of protection for very similar reasons, and we feel it is consistent with other provisions of health law in other acts.
The Chair: Further comments?
Mr Jim Wilson: Just a comment that I'll be supporting the Liberal motion; it's similar to the PC motion that we'll be debating next. There are some significant differences, and I'll reserve my comments for my own motion on this section.
Mr Malkowski: The government will not be supporting this motion. Other provisions already appropriately limit the advocate's right of access to records. The proposed amendment in fact could cause excessive delays in the provision of services.
Mrs Sullivan: Could we go back, then, to the comments I made with respect to the identification of the record? Does the ministry contemplate, then, that there will be a comparable process to that undertaken under the Freedom of Information and Protection of Privacy Act to describe what records are being maintained in a facility, so that there can be some precision when the advocate requests records? It's certainly not outlined in this bill. How will the advocate be able to define with any precision the specific record without the operator of the facility or the program or the controlled-access residence being able to determine whether what is in a particular computer file or filing cabinet or whatever is the record that's required, because there may be a name confusion?
Does the government contemplate a register of records? Is every hospital and every nursing home going to be required to go through the process that we went through in the implementation of the Freedom of Information and Protection of Privacy Act? If there is not that register thinking, there will be no precision in the request of an advocate for a record.
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Mr Malkowski: I appreciate your concerns and the points you've raised. That would be left to the commission to develop under the regulations.
Mrs Sullivan: No. Where? How?
Mr Malkowski: Maybe I will just ask our legal counsel to clarify that process.
Ms Perlis: I'm not sure the commission necessarily will do it under regulation, but I certainly think it's within the purview of the activities of the commission to set policies and guidelines and directives respecting protocols to be followed by advocates and hopefully by facilities in working out the details of the records to be accessed by advocates. You're right in pointing out that there is no definition of records in the act for the purposes of these sections, and that will have to be worked out with the facilities and programs.
Mrs Sullivan: Well, if there's no provision for regulations in these areas, there is no indication that there can be any precision in determining the name of a record that the advocate asks for and there is no protection through the facility, program or residence in saying that if the advocate names a name of a record, there's a whole bunch of other stuff the facility must provide, even if it's not the specific record that the advocate wants or needs, I think there's a big problem here.
Why don't we accept my amendment? All of the provisions, then, are protected. The Consent and Capacity Review Board, which will also be looking at it and is able to agree under the Consent to Treatment Act with respect to access to records, can say: "This is the record. This portion of the record is in fact what the advocate needs and wants." There is expertise there. There is an expertise in not only the use and treatment of the records but in the working with the kinds of issues the advocate himself or herself will be working with.
I think this is a hell of a lot easier than being in a situation later where the commission, with no powers to do so, is going to have to try to impose upon a hospital certain functions of establishing a register. The commission doesn't have that power. This is an easy way to do it and to involve people with expertise.
Mr Malkowski: I'd like to ask our legal counsel to follow up on that concern.
Ms McKague: Yes, a couple of points. First, there appears to be no problem legally in defining what are the records relating to the vulnerable person. They are records which mention the vulnerable person. Whether they're in one file or scattered around the hospital, they are certainly records relating to the vulnerable person. One would also hope that there are very few facilities or controlled-access residences operating which don't have some sort of filing system which can't find the record of a particular person upon request.
Second, I want to mention a couple of points arising out of your earlier comments. Number one, you referred to proceedings under the Mental Health Act about hearings before the review board under that act to deal with release of records. Those proceedings are only in respect of release of records to the patient. In fact the act specifically provides that where a patient is being represented by a lawyer or agent, who could be anyone, before the review board, in preparation for that hearing, the lawyer or agent has access to the records if the person is incapable of consenting. As of right, the person who is representing that person's interests has access to the clinical record. So there is certainly a precedent for this.
Third, I might mention in passing, there's concern about the use to which the advocate might put the information once it's in the advocate's hands. There is now case law indicating that any confidentiality attached to such things as medical records follows those records wherever they go. In other words, the advocate is under precisely the same duty of confidentiality, once granted access to the records, as the facility was under in the first place.
Mrs Sullivan: I think counsel has misunderstood the point, partially because perhaps she was not involved in government at the time the freedom of information provisions were being undertaken. I think those who were involved would understand the issue I am raising more extensively.
You've indicated that of course facilities will have records about patients. Yes, they will. You've indicated they could be here, there or everywhere and they could be in relation to this or that. The point is, in accessing records, the advocate should not have records other than those that he requires to conduct the advocacy services he is instructed to conduct or provide, beyond which those other records should still continue to be in the private logs of the facility. The advocate shouldn't be accessing records relating to a broad range of issues if there is one specific area for which advocacy services are required.
Ms McKague: I agree with you.
Mrs Sullivan: That's why there's the question of the need for the register. If the only filing system is the name of the patient or the person, there are going to be all sorts of records included in that file that will bear no relationship to the advocacy services needed, to which the advocate should not have the right of access. That's the point of this amendment.
Ms McKague: My opinion on this is that the same situation prevails in the Mental Health Act, since we've been talking about that. In fact a lawyer in certain circumstances has full access to the file. A lawyer will require only parts of that file in most cases and he may request only portions of the file.
In some cases, however, especially if the file is a somewhat disorganized and chaotic one, it may not be possible for the advocate to know in advance what portions he may require and it may therefore be necessary for him to have access to the whole file in order to determine that.
Mrs Sullivan: That's precisely the point of the amendment. The advocate should not have the right of access to the entire file if a portion of that file bears no relationship to the advocacy services that are being provided. That is precisely the point. The separation decision should be made by an independent organization that has the expertise, such as the Consent and Capacity Review Board, to determine which portions of the entire file apply to the advocacy services that are being performed on behalf of the person.
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Ms McKague: One last comment: If the individual, the vulnerable person, has in fact consented to the release of the file, there should be no issue at all. I would suggest your concern may relate only to the uninstructed advocacy situation.
Mrs Sullivan: Well, I think it relates to both. The consent from a capable, vulnerable person relates to the portions of the record about which instructions have been provided to the advocate and requests made for advocacy services. For the incapable person, the emphasis is even greater with respect to the issues that have been raised.
Ms McKague: So you're suggesting then that even though the vulnerable person knowingly, willingly has consented to full disclosure, it should still be in the discretion of the facility to withhold.
Mrs Sullivan: The vulnerable person is consenting to access records for the purpose of the provision of advocacy services in specific areas. I think we have, by example, in an informal conversation last night discussed difficulties that a vulnerable person may have in a group home. They may be interpersonal difficulties, where the services of an advocate will be of some use in assisting the vulnerable person in that home to achieve things that the vulnerable person could not achieve otherwise in terms of rights or in terms of correcting misunderstandings or improving services or whatever.
If records related to the involvement of that person were needed, surely the advocate should have only records that relate to the services for which help was requested; not to all records which may be contained but to the specific records which will help the advocate in the specific circumstance in which instructions were given.
Ms McKague: Might I suggest that the appropriate procedure in that case would be for the advocate to seek and receive a limited consent from the vulnerable person to say, "All we need is the information about this particular issue," and have a consent from the vulnerable person to access only that information.
Mr Jim Wilson: The concern being expressed by Mrs Sullivan is of course reflected in the PC motion on 24.1 also, that is, with regard to patient-specific or vulnerable person-specific records. Now you can't blame us for having a concern here when we see a government amendment dealing with 25.1 where not only do you now want access to a vulnerable person's clinical record, but you are now bringing in an amendment that would give the advocate access to documents of general application. So our antennae went up, and I think it proves the case.
The very fact that you have another amendment coming in here to broaden the access proves that our suspicion is probably correct. For the world of me, having seen the tenacity and the eagerness some of our witnesses had for this section, I cannot help but be suspicious and fearful that, if we don't do something to make sure that there's a very stringent limitation on the extent of information that's able to be obtained pertaining to the vulnerable person, patient-specific records will be used to advance the cause of systemic advocacy.
If we're not very careful and very specific on section 24, I can think of scenarios where information pertinent to an individual could very well be used as an example of the need for systemic advocacy. I assume then the advocate communicates with more than just the people listed in the act here in terms of dealing with the government and dealing with legislators.
There's a real need for the control of access and the control of this information. I am not satisfied with what's in the act. You can't blame us for being worried about this when you've tabled a motion regarding section 25.1, where you want documents of general application. So let's come clean here, folks.
The Vice-Chair: Any further comments or questions? Seeing none, all those in favour of the Liberal motion?
Mrs Sullivan: A recorded vote, please.
The committee divided on Mrs Sullivan's motion, which was negatived on the following vote:
Ayes--3
Cleary, Sullivan, Wilson (Simcoe West).
Nays--5
Carter, Malkowski, Owens, Wessenger, Winninger.
The Vice-Chair: We will move on to the PC motion on section 24.1. Mr Wilson.
Mr Jim Wilson: I won't belabour the point that we've just made regarding the Liberal motion on section 24.1, except to add, as outlined in the motion, that no record should be accessed without the consent of the facility or the controlled-access residence or program prescribed by the regulations, unless authorized by a body independent of the commission -- in the case of this amendment, preferably the judiciary by way of warrant in advance -- and that advocates are not entitled to access records relating to other persons. This is certainly our firm belief. Otherwise, the motion is self-explanatory.
I regret that the government has not participated with any real level of enthusiasm for about the last half-hour with regard to our concerns dealing with access to records. It's probably futile to try to argue with a brick wall, as it were.
Mr Malkowski: The government will not be supporting the PC motion for the following reason: The necessity to obtain a warrant is unreasonable and in fact can cause excessive delays; safeguards already do exist to protect the privacy of persons, other than the vulnerable person.
Mr Jim Wilson: We're ready to vote on this. I'd ask for a recorded vote.
The Vice-Chair: Any further comments or questions? Seeing none, we will vote on the PC motion.
The committee divided on Mr Jim Wilson's motion, which was negatived on the following vote:
Ayes--3
Cleary, Sullivan, Wilson (Simcoe West).
Nays--5
Carter, Malkowski, Owens, Wessenger, Winninger.
The Vice-Chair: We will move on to the PC amendment to subsection 25(2.1).
Mr Jim Wilson: Briefly, the rationale behind this amendment is that we feel there are very few safeguards regarding the wide access to various kinds of records, such as notice, the requirement of independent scrutiny of the need for such records or the right of the facility organization to challenge the decision, particularly the latter part. We feel very strongly about the right of the operator of the facility, the residence or program to be entitled to refuse to give the advocate access to records if the advocate does not have a warrant.
Having said that, and having spent considerable time arguing along the lines as delineated in this motion, I don't expect the government's going to support it.
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Mr Malkowski: The government will not be supporting the motion. The need for a warrant is in fact unreasonable. The commission may not be able to get the reasonable grounds this section requires. In fact, we trust the judgement of the commission in providing consent to such access in this area.
Mr Jim Wilson: Thank you, Mr Malkowski, but our real concern here is that in an unprecedented nature the government is setting up an arm's-length commission with a built-in bias, and now you won't even let us have a check on that. If there turns out to be a witchhunt commissioned or sanctioned by the commission, there's no check on that. Given the built-in bias of the commission, I envision very few times when a request for access to records will be turned down, because the overall inclination will be: "Go for it. When it comes to facilities and controlled-access residences and the programs prescribed in the regulation and the people running all these things, our bias is that we don't trust them." That's the thrust of this act; we're setting up an adversarial situation and "We don't trust them."
Now you won't even give us a check on that tremendous power the commission has. I don't understand that, I don't like it, and I wish you'd reconsider your position, because it is unprecedented.
Mrs Sullivan: We won't be supporting this amendment, but we certainly are concerned about many of the issues the amendment points to: the suspicion of facility abuse; the suspicion of abuse in every controlled-access residence and so on; the lack of process included in the act and no indication of regulations with respect to the conveying of information to the facility with respect to the requirements; charges of abuse that have been made about the facility or the residence or the program. Once again, what we see is, in the case of people providing service from the facility side, no redress or due process. We feel that an adversarial situation has been set up through this act in all cases, rather than a process through which there can be a compromise through which information can be conveyed that will enhance improvement. We know there are powers for action to take place when there is abuse. There is, however, no right for record correction or even information to the facility or program or residence when charges or suspicions are held. Even under the inspection process, by example, of the Nursing Homes Act there are discussions that take place, under the child care act there are discussions that take place, and indeed improvements can be made.
In this case, the relationship that is implied through this legislation is an adversarial one between the providers on the one side and the advocates on the other. I'm convinced the warrant is the appropriate way to go, which is why, by example, on the previous amendment on records we went a different route. But we feel that the adversarial nature here is just inadequate.
Mr Jim Wilson: I would ask members to look at subsection 25(2). If you read that section, it's the criteria the commission must use in determining whether it's going to give consent to an advocate for access to the records. Read this 25(2). If that isn't a green light to go and seek whatever records you want, I don't know what is. Anybody could make a case that the purpose is "detecting or demonstrating the existence of systemic policies or practices that may be detrimental to vulnerable persons." Those are very weak criteria any way you look at it.
All we're asking for are some safeguards with respect to the consent that can be given the commission, given the bias of the commission and given that it doesn't even have to make what I would consider really a case. I think it's disturbing that Mr Malkowski pointed out that he didn't feel the commission could meet a "reasonable grounds" test. You're dealing with people's records and privacy and you're giving tremendous powers to a biased commission, and then you're saying to that commission, "Well, for semantic purposes, we have to have some criteria in this act." But as to the criteria, you can drive a bloody truck through that paragraph. It doesn't mean anything. You wouldn't even, as a schoolteacher, assign a student to write an essay using those criteria as the parameters to come up with the body of an essay. I mean, it's just ridiculous. I'll bet every witness who appeared before us during the public hearings could meet those criteria in terms of making a case for the need to access those records. There are no teeth in this, so why do you even have it in the act? All we're saying is that if you're going to have it in the act, there should be some safeguards. Maybe you don't want to do the warrant. Maybe we should stand this down and try and come up with another set of safeguards over dinner, but there must be safeguards.
Mr Malkowski: I think Mr Wilson misunderstood my point. I'll just ask the political adviser to clarify that issue.
Ms Valentine: I'm not sure what Hansard will show. I think what was inferred was that sometimes it's necessary to have the access to be able to gain enough concrete information to show the reasonable grounds.
Again, it's not a situation of someone initiating an activity of systemic advocacy without some reason to do so in the first place, but often in order to develop enough information to be able to concretely show where a change is needed or what the problems are, where abuse exists. Whatever the situation is, it is necessary to have access to be able to gather some factual information, rather than subjective information, information being told by patients but without being able to have information from the records to verify it.
The Chair: Further discussion? Seeing none, we'll now call the vote on the PC motion on subsections 25(2.1) to (2.3).
Mr Jim Wilson: We should have a recorded vote. It should be only one name.
The committee divided on Mr Jim Wilson's motion, which was negatived on the following vote:
Ayes--1
Wilson (Simcoe West).
Nays--7
Brown, Carter, Cleary, Malkowski, Morrow, Wessenger, Winninger.
The Chair: We will now go to the government motion on section 25.1. Any comments?
Mr Jim Wilson: There are a lot of comments on 25.1. I know my Liberal colleague Mrs Sullivan has some very strong feelings about this. With the indulgence of the committee, we could either recess for five minutes till she returns or -- actually, that would be the fairest thing, I think.
The Chair: This committee will stand recessed for five minutes.
The committee recessed at 1741.
1754
The Chair: I call this committee back to order. Mr Wilson.
Mr Jim Wilson: I would like to begin the discussion on the government motion dealing with section 25.1 by asking exactly what is intended and meant by "document of general application" in the motion.
The Chair: Could you please repeat that?
Mr Jim Wilson: The motion reads, in part, "to any record that is a document of general application relating to the observation, care, treatment or management of persons that is in the custody or control of," and it lists "a facility" etc. I just want to know what is meant and intended by "document of general application." What types of documents can be accessed under this power?
Mr Malkowski: I would like to just refer that to our policy adviser for clarification.
Ms Valentine: It would be generally the same type of record, whatever type of record is kept about a resident patient. It actually, from the best of our understanding, was probably an error in the original drafting. It really is only bringing the issue consistent with access in other facilities. Again, there's a bit of a fallacy in having access to the facility but not to the record in order to be able to carry out advocacy.
Mr Jim Wilson: Which records, though? I think this amendment refers specifically to what we heard from the advocacy coalition with regard to policy manuals, etc. I'm just sort of wondering if that's right and, secondly, what type of documentation is envisioned.
Ms Valentine: Am I on the right amendment, 25.1? I'm sorry; I just came back in.
Mr Jim Wilson: Yes.
Ms Valentine: As far as any record of general application, yes, it's the type of information that would normally be available under freedom of information if it's a government-run facility, but if it's not a government-run facility, then general policy guidelines, general operational manuals, policy and restraints procedures, all of those sorts of things.
Perhaps I could go back to the restraints issue that's been mentioned from time to time. Clearly, there are times when restraints are used in facilities, but they need to be used with particular safeguards, with particular guidelines. There are particular requirements for people only being kept in restraints for a certain period of time before they're checked, and they have to be observed in a certain way and so on. Without access to that type of standard or guideline within the facility, it's difficult for the advocate to know how to go about even beginning to assess information as to what's happening.
Mr Jim Wilson: Would there be anyone available in the room to let us know the thoughts of the Legislature at the time it exempted these facilities under FOI and the reasons why?
Ms Valentine: FOI doesn't cover such facilities. It is government-run facilities that FOI covers.
Mr Jim Wilson: And there's no extension to facilities that receive government funding such as these. Okay.
Mrs Sullivan: I think we'll be voting against this motion because of the lack of clarity in the motion. The indication of records of "general application relating to observation, care, treatment or management of persons" is by itself so broad and so extensive that the concept is a frightening one.
The misunderstandings that can be created by this particular amendment, it seems to me, are very extensive. I was interested today in seeing comments from the Minister of Citizenship with respect to new federal immigration policies indicating that she was extremely concerned that immigration regulations would be made away from the public eye and therefore without public understanding and involvement in those decisions. You know that we have had the same concerns about regulations being made under these bills. In fact, in this case there isn't a regulation and there is no understanding of the specific nature of the kinds of records. The word "record" is used in this motion, not "document," which is a different thing. A "policy manual" is a very different publication than a "record." We just feel that, as it's worded and as it's presented, there are frightening implications to this particular government amendment.
Mr Malkowski: Just to respond -- actually, I'd like to refer that to our policy analyst to respond to that concern.
1800
Ms Valentine: I'm not really sure I have much more to add, other than to say that we went with the policy intent of the legislative counsel and this was the suggested wording. The intent, as I say, is largely to the same types of documents and so on that are provided under FOI. Government facilities are available under FOI, and government facilities are considered generally available to any member of the public.
Mrs Sullivan: Would the government consider then standing this down and redrafting so that this particular motion could be considered latterly with more specific information that would lead to less misunderstanding? I think that might be a useful way of dealing with this. We certainly cannot support this in its current form because of the breadth of information that's provided for in this amendment. If the government's intention is specific with relation, by example, to employment policies or codes of ethics or procedures within an institution or a place, the FOI does spell those things out. I think we should have a similar provision in this bill and we would prepared to consider it, but in its current form we simply cannot support this. It's way beyond what we could possibly accept.
Mr Malkowski: I do appreciate the concerns you've raised and we will be amenable to that. We'll stand down the motion.
The Chair: Do we have unanimous consent to stand this government motion, 25.1, down? Agreed?
Mr Malkowski: I now move that we adjourn the committee for the day.
Mrs Sullivan: Mr Chairman, we would like --
The Chair: This is nondebatable.
Mrs Sullivan: Frankly, I don't give a damn if it's not debatable. I want to speak to this and it's my right to speak to it.
The Chair: There is no debate on a motion to adjourn.
Mrs Sullivan: Then I want to raise a point of order.
The Chair: On a point of order?
Mrs Sullivan: Thank you. The government yesterday stood down several motions that were put by the opposition under the guise of having to receive consultation. We sat until 10:30 last night debating issues that were very important and that have not had that kind of debate. We are quite prepared to sit again tonight so that some of the other very important issues that have been put forward in amendment can receive appropriate debate.
We believe that the attitude of the government with respect to Bill 74 to date has been pretty darned irresponsible. I've indicated before today in our discussions that through the public hearings, because of the time allocation, we had inadequately explored many of the issues that are associated with this bill.
The opposition parties are prepared to take a break for dinner and return tonight. We believe that the issues here are matters of grave, important public concern. This is new law. This is not a collective bargaining situation, as I indicated to the staff person from the Minister of Citizenship last night. We want to talk about these issues.
We feel, as opposition, that we have contributed in terms of the development of policies on this and other bills. We know that on Bill 108, by example, we probably won't have to take the entire one and a half days, or at least we expect that, or certainly will not have to go later than 5 o'clock. We seem to be reaching an accommodation on that bill.
We have explored, in discussion, many of these issues. We have yet to hear the government's response on issues which, at the government's request, were stood down, and we would like to come back at this and complete this bill tonight.
The Chair: I can understand your concern, but you do not have a point of order, Mrs Sullivan.
Mr Jim Wilson: I have a true point of order, Mr Chairman. In light of the orders that came from the House, I don't think this motion can be accepted and voted on at this time. We were ordered and allowed two full days. The day ends at midnight. You cannot shut down debate on this bill, because of the orders from the House. You cannot accept that, and I'll ask the Speaker for a ruling on that if I have to. You cannot accept that, because two full days have not expired on each piece of legislation. You can't just shut it down because somebody asked for what is a non-debatable motion. I don't think you can accept that in order, Mr Chairman. That is not in order, and for you to rule otherwise flies in the face of the orders given by the Legislature. I do not think that's stretching it at all.
The Chair: I agree you do have a point, but a motion to adjourn is always in order.
Mr Jim Wilson: It is in terms of Robert's Rules of Order, but I would think we're dealing with rules that take precedence over that -- that is, orders from the Legislature, which is supreme. Regardless of what Robert's Rules or the standing orders of this committee would be, the Legislature has ordered us and given us the right to spend two full days, and the day ends at midnight.
Mrs Sullivan: Mr Chairman, can I ask for unanimous consent for that motion to be rescinded?
The Chair: Do we have unanimous consent? No, we don't have unanimous consent.
Mrs Sullivan: Could we have some explanation?
The Chair: Could we have a two-minute recess, please?
The committee recessed at 1806.
1809
The Chair: I call this meeting back to order. First of all, in response to Mr Wilson, while the House is sitting, it's true the committees do adjourn at six o'clock. When the House is not sitting, we are free to sit till midnight, but a day is very loosely interpreted. I know there was a discussion last night about whether we had our two days in, as we had sat Monday afternoon, Tuesday morning, Tuesday afternoon and then Tuesday evening. So it would have been questionable whether we had our two full days in, but as we have gone this afternoon also, I would say we have gone the two full days.
A motion to adjourn is always in order.
Mrs Sullivan: On a point of order, Mr Chairman: One of the things I wanted very much to have on the record and to request of the government is related to some of the debate with respect to the subsections that were debated earlier today and the concern that indeed we might be passing legislation that would infringe the Charter of Rights and Freedoms .I want to ask the committee if it would ask the Attorney General to make a reference to the appeal court to determine if the subsections with respect to access to residences were appropriate.
Mr Mark Morrow (Wentworth East): On a point of order, Mr Chairman: The point of order the honourable member is referring to is not a point of order, is it?
The Chair: You're right. She did not call for a point of order; she was just making a statement. Maybe it would be more appropriate tomorrow morning.
One suggestion to the committee though, possibly, is that as we still have a fair bit to go on Bill 74, it might be possible for the government staff and the opposition staff to sit down and see if they can't work things out, because the amendments are still available to come in.
We'll now go to the vote on the motion to adjourn.
Mrs Sullivan: A recorded vote, please.
The committee divided on Mr Malkowski's motion, which was agreed to on the following vote:
Ayes--6
Carter, Malkowski, Morrow, Owens, Wessenger, Winninger.
Nays--4
Brown, Cleary, Sullivan, Wilson (Simcoe West).
The Chair: This committee stands adjourned until 10 tomorrow morning.
The committee adjourned at 1812.