CONSENT TO TREATMENT ACT, 1992 / LOI DE 1992 SUR LE CONSENTEMENT AU TRAITEMENT
ADVOCACY ACT, 1992 / LOI DE 1992 SUR L'INTERVENTION
CONTENTS
Tuesday 15 September 1992
Consent to Treatment 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:
*Miclash, Frank (Kenora L) for Mr Mahoney
*Rizzo, Tony (Oakwood ND) for Mr Winninger
*Sterling, Norman W. (Carleton PC) for Mr Harnick
*Sullivan, Barbara (Halton Centre L) for Mr Chiarelli
*Wilson, Jim (Simcoe West/-Ouest PC) for Mr Runciman
*In attendance / présents
Also taking part / Autres participants et participantes: Auksi, Juta, senior consultant, policy development branch, Ministry of Health
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
Sharpe, Gilbert, director, legal services branch, Ministry of Health
Wessenger, Paul, parliamentary assistant to the Minister of Health
Clerk / Greffière: Freedman, Lisa
Staff / Personnel:
Beecroft, Doug, legislative counsel
Hopkins, Laura, legislative counsel
The committee met at 1025 in room 151.
CONSENT TO TREATMENT ACT, 1992 / LOI DE 1992 SUR LE CONSENTEMENT AU TRAITEMENT
Consideration of Bill 109, An Act respecting Consent to Treatment / Loi concernant le consentement au traitement.
The Chair (Mr Mike Cooper): I'd like to call this meeting of the standing committee on administration of justice to order. Good morning. Well done last night. Now we'll be going back to the Liberal motion that was stood down, section 15.2.
Mrs Sullivan moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:
"Child in need of protection
"15.2 Nothing in this act affects the law with respect to a child in need of protection within the meaning of subsection 37(2) of the Child and Family Services Act."
Mrs Barbara Sullivan (Halton Centre): The intent of this amendment is to ensure that children's aid societies not only have the authority but understand that they have the authority under the Child and Family Services Act to carry out their standard and mandatory duties under that act, as they have in the past. As you know, that act was amended fairly recently and updated. This is simply an underlining that the provisions of the Consent to Treatment Act will not interfere with the CFSA.
Mr Jim Wilson (Simcoe West): I can't find the amendment. Is it subsection 37(2)?
The Chair: No, section 15.2. It was the one that was stood down last night and we agreed to go right back to first thing this morning.
Mr Paul Wessenger (Simcoe Centre): We'll be opposing this motion because we'll be moving later an alternative motion to add section 45.1, which will deal with the aspect of conflicts with the Child and Family Services Act, which will provide that in the event of a provision of this act conflicting with a provision of the Child and Family Services Act, the provision of the Child and Family Services Act will prevail. So we'll be opposing this motion and we will be moving our own amendment in this regard.
Mr Norman W. Sterling (Carleton): We're aware of the government's intention to introduce a motion to this other section which will, in effect, put this act in behind the Child and Family Services Act for a period of three years, as I understand it. We deem that a reasonable compromise to reach on this. It will provide, I guess, a period of time of safety, which we think is reasonable in the circumstances. Legislators can then deal with it in a three-year period if that has to be extended.
The Chair: Seeing no further discussion, we'll proceed to the vote on the Liberal motion on section 15.2. All those in favour? Opposed?
Motion negatived.
The Chair: We'll proceed from where we left off yesterday, the Liberal motion on subsection 24(1).
Mrs Sullivan: Mr Chairman, I'd just like to give notice that I have an amendment coming to clause 23.1(b). It hasn't arrived yet, if we can go back to that section subsequently and move ahead. That amendment will not affect any of the subsequent amendments in section 24.
Mr Wessenger: I have no problem.
Mr Jim Wilson: Which clause?
Mrs Sullivan: It's 23.1(b).
Mr Jim Wilson: I have an amendment for that too.
Mr David Winninger (London South): We'll stand that one down.
The Chair: Okay. As soon as they come forward, we'll bring them up.
Liberal motion on subsection 24(1).
Mrs Sullivan moves that subsection 24(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "grounds" in the third line "and in good faith."
Mrs Sullivan: This amendment is put forward as a direct result of interventions from the College of Physicians and Surgeons of Ontario and from the ad hoc committee, particularly the Ontario Medical Association, as I recall.
With respect to the protection from liability, which refers to the health practitioner, the recommendation of those groups and organizations has been that the good-faith test be added to the reasonable grounds test. I'm trying actually to find the specific sections.
There are some pertinent sections from the College of Physicians and Surgeons brief which I'd just like to read into the record:
"Last year before this committee, the Minister of Health expressed concern about creating a situation where practitioners felt it necessary to observe the technical requirements of the bill rather than using common sense to act in the best interests of their patients. We share that concern. But by setting up a bureaucratic legal standard of reasonable grounds in all circumstances, the government will encourage health care workers to observe technical compliance above all else.
"If the government wishes to ensure that the interests of vulnerable or incapable people come first and do not get lost in bureaucratic interpretations of the act, then it should allow health care practitioners, whether nurses, midwives or doctors, to act in accordance with the judgement they are trained to deliver; in other words, in good faith."
The college goes on to say, "The government would appear to believe that vulnerable people in need of advocacy services are best served by this approach. In section 9 of Bill 74, advocates are allowed to exercise their trained judgement in good faith. We believe all patients deserve this protection."
I think that's a very explicit and concise approach to the rationale for adding this amendment. The college, as you know, is the disciplinary body and, frankly, its underlining of the importance of this amendment has meant a lot to me in putting it forward. They believe that the professional judgement that's associated and reached in good faith and the treatment which is delivered in good faith should be a test in the protection from liability for the practitioner.
I think it's a rational and reasonable argument and the government should accept it.
Mr Wessenger: Yes, we'll accept that amendment.
Mrs Sullivan: I thought you weren't going to.
The Chair: Seeing no further discussion, we'll proceed to the vote. All those in favour of the Liberal motion on subsection 24(1)? Opposed?
Motion agreed to.
The Chair: The PC motion on subsection 24(1).
Mr Jim Wilson: Since this motion is identical to the Liberal motion, we won't be introducing it at this time.
The Chair: Liberal motion on subsection 24(2).
Mrs Sullivan moves that subsection 24(2) of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "grounds" in the third line "and in good faith."
Mrs Sullivan: Mr Chairman, the same rationale follows and I assume that we have agreement.
Mr Wessenger: Yes, we do have agreement.
Motion agreed to.
The Chair: A PC motion on 24(2).
Mr Jim Wilson: We were just sort of wondering why the Liberals always get to go first with our motions and whether that be simply custom around here or whether it's a steadfast rule. I wouldn't mind knowing that, Mr Chairman.
The Chair: This is the way I inherited the committee and they agreed that's the way they wanted me to continue.
Mr Jim Wilson: I'll tell you, you're going to have to chat with the members of our subcommittee.
Mr Sterling: No, our subcommittee never agreed to that.
Mr Jim Wilson: It's a strange custom, I think. I don't think there's actually any rule for it, but I'd be interested to know that.
Mr Alvin Curling (Scarborough North): Get more seats in the House.
Mr Jim Wilson: It's okay, we'll be the government next time. We'll have the overall prerogative.
The Chair: Then you can make your own rules.
Mr Jim Wilson: With reference to the subject at hand, we will not be introducing our motion dealing with subsection 24(2) since it is identical to the Liberal motion which we just agreed to.
Mr Sterling: I think we should rephrase that. Their motion is identical to our motion.
Mr Jim Wilson: That's true. Their motion, as all members will note, is identical to the PC motion, and our press release will reflect that fact.
The Chair: The Liberal motion on subsection 24(3).
Mr Sterling: Could I just revisit this, because perhaps Mr Wilson was a little hasty in drawing the parallel. There's a difference in the wording in both 24(1) and 24(2) in that our motion strikes out "unreasonable grounds" and inserts "in good faith." Theirs is a dual test and it says "reasonable grounds" and "good faith."
Mr Winninger: It's better.
Mr Sterling: Basically it's additive and putting more of a burden upon the health care practitioner. Our motion, quite frankly, was the opposite. We thought the health care practitioner should only act or be required to act as long as he or she was acting in good faith. Then that was a sufficient test because of the burden that's being placed upon the health care practitioner in section 4, which I asked to be stood down. Therefore I would ask, quite frankly, that we be given the opportunity to place our amendments to both 24(1) and 24(2), because they are quite different in their meaning, the two motions.
Mr Wessenger: I can understand Mr Sterling's point and I think he should be allowed to reopen and move his motion and have a vote on it, because he's quite right, they are substantially different.
Mr Jim Wilson: I appreciate the committee's indulgence on that too, because I did draw a hasty and inaccurate conclusion and my learned colleague in the law has pointed that out correctly, so I would appreciate the committee's indulgence.
The Chair: Mr Sterling moves that subsection 24(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "on reasonable grounds" in the third line and substituting "in good faith."
Being the other amendment by the Liberals was already passed, I think all you need is "unreasonable" because "grounds" has already been stricken out from the previous amendment.
Mr Sterling: No, it did not strike out "grounds."
The Chair: Sorry, my apologies. Discussion?
Mr Sterling: I don't know whether the motion is absolutely correct. I think everybody understands the intent of it.
Mr Winninger: I'd prefer not to delete the phrase "on reasonable grounds." The reasonable person test is a well-known test in the law. It's more objective than just "in good faith." I can think of many examples where acts were done in good faith that we would never countenance today. For example, people were persecuted and killed during the Inquisition in good faith.
If you delete the reference to "reasonable grounds," I think you're setting a fairly dangerous precedent where people who are duly qualified professionals and expected to exercise a test of reasonable competence would be able to excuse either treating with consent or not treating without consent on the basis of good faith, and I submit, wouldn't be called upon, on the basis of this, to meet a reasonable person test or even a reasonable professional test.
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Mr Sterling: I didn't have an opportunity to explain my motion. Normally, Mr Chairman, you allow the proposer of the motion to have an opening remark or whatever you want to call it.
I think we should turn our minds to some of the discussion Mr Wilson has made me aware of, which I was not here for; that is, that we require, under this act, a number of people to be certain that a consent has been obtained and that it has been properly obtained. We require under section 4 that, "A health practitioner who proposes a treatment to a person shall ensure that it is not administered unless," and then we go through a number of tests to make certain he's got the consent.
I believe there are other sections which also put on "the health practitioner who proposes the treatment." Now it may not be the same health practitioner who carries out the treatment, and it throws the burden upon the health practitioner not only with regard to what is occurring through his direct control but through his indirect control as well.
Do we want a whole body of law to build up about what are reasonable grounds for seeking this consent or do we want to say to the health care practitioner, "You acted in good faith; you sought to assure yourself that consent was there"? Is that not enough in terms of asking our health care practitioners, or are we going to establish a whole procedure which they have to go through in order to check with the official guardian's office, that they have to do this and do that etc, even though the official guardian's office was closed at the time they made their first call? Do we want a whole area of law developed on finding out whether there has been adequate consultation, whether the adviser has been called in, who was the adviser, was the adviser prescribed under the act, all of those kinds of things?
What I think most people would accept as reasonable is that if the health care provider, be it a nurse who is administering a needle, be it any one of the other 24 health disciplines who might be providing it, acted in good faith and thought properly that there was consent, then he should go ahead with the treatment. I think that's enough. I just don't think we should be throwing our health care providers into an even more mistrusted state than we are by creating this act. I believe what I'm asking is a lower threshold of test than is provided in this act and I think it's fair.
Mrs Sullivan: The very issues Mr Sterling has raised came to my mind in reviewing the recommendations of the college. The college has specifically recommended the words "that a health practitioner believes, on reasonable grounds and in good faith to be sufficient for the purposes of this act." That is part of their brief to the committee on the last go-round.
I had several conversations with them with respect to that presentation, because I felt there would be a double test and a more stringent test if the two issues were included. They took this back into meetings to review the recommendation they had made before committee and came back to me with the same recommendation before us. They felt that the two tests were appropriate, one of a more legalistic nature would be balanced by the "good faith" test, and that it was not a harder test or a more stringent test, that it was a more equitable test and would give physicians a greater freedom in terms of exercising their professional duties. I had explored precisely those issues with the college in questioning the recommendations that it had put forward and I think Mr Sterling has voiced very similar arguments to those I put to the college as a result of its recommendations.
Mr Jim Wilson: Mrs Sullivan is correct, I think, with regard to a position held by the CPSO at one time. The preferred option would be as Mr Sterling has pointed out.
I think it's also fair to point out to members that the public guardian and trustee and other substitute decision-makers are held to the lesser standard of good faith and that perhaps it's just logical and more consistent to have all partners in this legislation held to the same threshold. It makes sense and I think it adds to consistency and a better understanding by the public and by the professionals who have to deal with this legislation if they know they are being treated equally. That's certainly been a principle of this government and I think it should be reflected in this legislation.
Mr Wessenger: We'll be opposing this amendment as well because if you take out the "on reasonable grounds," in effect, in my opinion, you do not have an enforceable act in any respect to the question of consent to treatment, so it's essential that you have a professional test. I think that's the reason the college itself supported the retention of the "on reasonable grounds" and I think the "on reasonable grounds" and "in good faith" is a good combination.
The Chair: Further discussion? Seeing no further discussion, proceed to the vote. All those in favour of the PC motion on subsection 24(1)?
Mr Sterling: Could we have a recorded vote on that?
The committee divided on Mr Sterling's motion, which was negatived on the following vote:
Ayes--2
Sterling, Wilson (Simcoe West).
Nays--9
Akande, Carter, Curling, Malkowski, Miclash, Morrow, Sullivan, Wessenger, Winninger.
Mr Sterling: You want me to withdraw the other motion, don't you?
The Chair: It hasn't been introduced.
Mr Sterling: Well, I'm not going to introduce it.
The Chair: Thank you very much. To finish off section 24 before we go back to section 23.1, we have a Liberal motion, subsection 24(3).
Mrs Sullivan moves that subsection 24(3) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Emergency treatment
"(3) A health practitioner who, in good faith, administers treatment to a person in accordance with section 22 or 23.1 or refrains from doing so in accordance with section 23 is not liable for administering the treatment without consent or for failure to administer the treatment, as the case may be."
Mrs Sullivan: Once again, this motion follows precisely the recommendations of the College of Physicians and Surgeons in this area and I put it forward to the committee for its acceptance.
Mr Wessenger: Perhaps we could ask legislative counsel, but there appears to be maybe a word left out of this resolution. It's been suggested that there should be a second "who" after the "or" in the second line. It's purely a matter of English. It was in our original draft.
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Mr Doug Beecroft: I think the "in good faith" provision is supposed to apply to both administering and refraining from doing so. I think if you put the "who" in there, you're going to have to repeat the "in good faith," so I think it's better without.
Mr Wessenger: You think it's better without. Okay, that's fine. We'll be supporting the motion.
Motion agreed to.
The Chair: Okay, we'll go back to the PC motion on clause 23.1(b).
Mr Sterling: What motion are we referring to?
The Chair: The PC motion on 23.1(b).
Mr Jim Wilson moves that clause 23.1(b) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "has reasonable grounds to believe" in the first and second lines and substituting "is of the opinion."
Mr Jim Wilson: If members look at section 23.1, I would argue, and I think we have some agreement on the government side, that it puts an almost impossible burden on the health care practitioner. As 23.1(b) reads in the reprint, there's a "reasonable grounds" test, that the health practitioner has reasonable grounds to believe that the person who refused consent did not comply with section 14, which calls upon the health care practitioner, in subsection 14(2), to decide whether the values and beliefs of that person were taken into consideration. If you read that, it's almost impossible for the health care practitioner to know that. Therefore, we feel that the better wording of this section would be "is of the opinion" and remove "has reasonable grounds to believe."
Mr Wessenger: We will be supporting this amendment because I agree with Mr Wilson that in the question of dealing with values, it's very difficult to have "reasonable grounds to believe" and that "in the opinion" is more workable language.
Mrs Sullivan: I have a further amendment which would strike this entire section, because I believe this is an impossible requirement to place on the practitioner, whether a dentist, nurse or midwife, and I am very concerned about the requirement being placed on the practitioner in these circumstances. I think the whole thing should be struck. That's my next amendment.
The Chair: Possibly, with the indulgence of the committee, we could have unanimous consent to deal with Mrs Sullivan's motion first? Her motion is to strike the whole section. Do we have unanimous consent to deal with that first?
Mr Sterling: I am going to refuse unanimous consent. I would rather deal with the amendment and then she can move a motion to strike the amended section. I would prefer it that way.
The Chair: Okay, we'll deal with the PC motion first. Further discussion? Seeing no further discussion, we'll proceed to the vote on the PC motion on clause 23.1(b). All those in favour? Opposed?
Motion agreed to.
The Chair: Now the Liberal motion. Mrs Sullivan.
Mrs Sullivan: Following precisely on the argumentation put forward by Mr Wilson, it's clear that we're both concerned about this section. As a consequence, I would like to move this motion.
The Chair: Mrs Sullivan moves that subsection 23.1(b) of the bill, as reprinted to show the amendments proposed by the minister, be struck out.
Mrs Sullivan: Once again, it's my view that this is an absolutely impossible requirement to place on a health care practitioner in whatever setting and I believe that the subsection should be struck.
Mr Wessenger: We'll be opposing this motion because this would destroy the whole concept of the Substitute Decisions Act as well as the whole provision for substitute consent under this act.
Mrs Sullivan: I don't understand that. This section refers to the refusal of consent, not to the entire substance of the bill, and it puts on to the health care practitioner a requirement that he understands, under section 14, various values, beliefs, wishes, if they can be ascertained, and whether the condition is likely to improve and so on. In fact, this has a much more limited impact than an impact on the entire bill. In this circumstance, it's an impossible requirement to place on the health care practitioner.
The Chair: Further discussion? Seeing no further discussion, we'll proceed to the vote. All those in favour of the Liberal motion on subsection 23.1(b)? Opposed?
Motion negatived.
The Chair: We'll proceed to the Liberal motion on subsection 26(6).
Mrs Sullivan moves that subsection 26(6) of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "been" in the seventh line "registered or."
Mrs Sullivan: This section relates to the application for review of the finding of incapacity not applying if the person has a guardian of the person or an attorney for personal care under a power of attorney. The recommendation is that the attorney could be registered or validated under the act.
Mr Wessenger: We will be opposing this bill because, again, we had this discussion, this motion, with respect to the question of the meaning of "validation." Validation does include a power of attorney which has been registered and subsequently validated by an assessment. If this motion were to carry, in effect, we would prohibit any person from challenging a decision of the attorney under a power of attorney which had not been validated so that the individual would have no access to the board of review. It would take away substantial rights.
The Chair: Further discussion? Seeing none, we'll proceed to the vote on the Liberal motion on subsection 26(6). All those in favour of the motion? Opposed?
Motion negatived.
The Chair: On the government reprint, subsection 27(3), paragraph 3. Agreed? Carried.
Okay, PC amendment on subsection 28(1).
Mr Jim Wilson moves that subsection 28(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "treatment" in the fourth line "or the health practitioner who proposed the treatment."
Mr Jim Wilson: The rationale is that the act fails to allow practitioners access to the board under section 28 in order to obtain direction with respect to the applicability and clarity of the incapable person's instructions or wishes. We think it's an extra tool the practitioner should have at his or her disposal in order to carry out both the principle and spirit of this act.
Mr Wessenger: We'll be opposing this motion. It's the substitute's decision, not the practitioner's, with respect to the matter of consenting to health care, and it's the substitute who has to apply the responsibility for applying the criteria, not the health practitioner. We don't see any reason for the medical practitioner applying for directions because it's not the medical practitioner's decision.
Mrs Sullivan: I am concerned that in some instances in fact the practitioner can proceed to treat without consent, or there may be circumstances where the health practitioner is unsure if there is consent. If there is a jumbling of the expression of the wishes, which is very clear here, we have an obligation for the health practitioner to not proceed with treatment unless, in good faith and with reasonable grounds, he believes that consent has been given. For clarification to the health practitioner, where in many cases there may not be a substitute decision-maker who's at hand to interpret wishes and where the statutory guardian may not have the extent of information to interpret those wishes, I think it is rational for the practitioner also to be able to apply and we'll be supporting this amendment.
The Chair: Further discussion? Seeing no further discussion, proceed to the vote on the PC motion on subsection 28(1). All those in favour? Opposed?
Motion negatived.
Mrs Sullivan: Mr Chairman, are we at the government amendment 28(2) and (3) at this point?
The Chair: No. We're going to do the government reprint on subsection 28(1) first.
Mrs Sullivan: Okay.
The Chair: Proceed to the government reprint subsection 28(1). Discussion? Seeing no discussion, proceed to the vote. All those in favour of the government reprint subsection 28(1)? Opposed? Carried.
PC motion on paragraphs 28(2)1, 2 and 3.
Mr Jim Wilson: Mr Chairman, I'm wondering if we could just take about a three-minute break or stand this down for a moment. We want to confer for a couple of minutes on this particular amendment in light of some information we learned last night.
The Chair: This committee stands recessed for three minutes.
The committee recessed at 1104.
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The Chair: I call this meeting back to order. After these discussions, could I ask you where we are then?
Mr Jim Wilson: We will not be introducing the PC motion dealing with paragraphs 28(2)1, 2 and 3. The simple rationale for not introducing it is that our previous amendment unfortunately failed and it just wouldn't make sense to try and introduce this motion, so we'll withdraw it.
The Chair: On the government reprint on paragraph 28(2)3.
Mrs Sullivan: I wanted to speak to this amendment for a minute or two. This is one that I have discussed with the counsel to the Ministry of Health and where there is some concern among health care providers. I think the concern relates to the fact that including the health practitioner as party to the application has created some confusion, and indeed I shared that.
In some initial work on the bill I attempted to propose a method whereby the practitioner could be called as a witness or could make a submission. Indeed I understand that this act is subject to the Statutory Powers Procedure Act, although it's not spelled out, and in fact I'm told that it's not necessary, although I still think this would be a useful amendment and may well bring it forward.
But I'd just like to read into the record, so that there won't be misunderstanding.
The legal opinion which came back to me from the Ministry of Health's legal counsel with respect to this question says:
"Under the Consent to Treatment Act, an individual has the right to have the Consent and Capacity Review Board review a health practitioner's finding of incapacity and a substitute decision-maker's decision to admit an incapable person to a hospital, a psychiatric facility or other prescribed health facility for treatment. In addition, a substitute decision-maker can apply to the CCRB for directions concerning an incapable person's wishes with respect to treatment and for authorization to override such wishes. The Consent to Treatment Act makes a health practitioner a party in respect of all of these applications.
"The Statutory Powers Procedure Act applies to the CCRB hearings which have been convened to deal with the above applications. Under the SPPA, a party has the right to be notified of a hearing, represented by counsel, to examine and cross-examine witnesses and to present arguments and submissions. Such extensive rights are not granted to witnesses. For example, counsel representing a witness is entitled to advise the witness of his or her rights but cannot take any other part in the hearing without the tribunal's approval. Where a party has received notice of a hearing but fails to attend the proceeding, the hearing may proceed in that party's absence and the party is not entitled to any further notice. The SPPA does enable a tribunal to issue a summons to any person, including a party, to appear as a witness for the purpose of giving evidence relevant to the subject matter of the hearing.
"It should be noted that a physician is named as a party in certain review proceedings under the Mental Health Act. It is advantageous to provide in the Consent to Treatment Act that a health practitioner is a party to certain proceedings. Absent such a provision, a practitioner wishing to participate in a proceeding would have to prove that he or she is entitled by law to be a party. Further, a practitioner has significant rights as a party that are not afforded to those entitled to participate as a witness only."
I think it's important to put that opinion on the table and to clarify for those practitioners who raised the issue in committee: The Ontario Dental Association and the college of dentistry both said, "Does this mean that a dentist would have to appear before the review board when a submission or legal representation may suffice?" The questions that I raised brought this opinion: It's clear that, in every circumstance, the practitioner himself or herself would not have to appear in person. In some cases, depending on the issue, the board may believe that a submission would suffice. In other cases, counsel could appear at the hearing.
I appreciate the time that counsel in the Ministry of Health took to do the opinion for me and I think that should be shared, so that there will be no misunderstanding among practitioners about what their obligations are in terms of being a party before the board.
The Chair: Further discussion? Seeing no further discussion, we will proceed to the vote on the government reprint on paragraph 28(2)3. All those in favour? Agreed? Carried.
Discussion on government reprint on section 29. Do we have unanimous consent for a PC motion on section 29.1? Agreed?
Mr Wessenger: To move it, yes.
The Chair: Unanimous consent to move it?
Interjection: Yes.
Mr Mark Morrow (Wentworth East): What happened to the government reprint?
The Chair: It's the whole section, so we won't vote on it. This is just for discussion.
Mr Sterling moves that section 29.1 of the bill, as reprinted to show the amendments proposed by the minister, be struck out.
Mr Sterling: This section appears to undo a lot of the work that was put forward in Bill 108 with regard to what we call a Ulysses clause, which we talked about before. It seems that we set up, under Bill 108, a structure whereby a relative who wants to treat, for instance -- the most familiar case we have heard about in this committee -- a schizophrenic patient, normally a daughter or a son, goes to the court, gets guardianship of this particular individual, wants this individual treated and wants to admit this particular individual to a hospital, either a psychiatric hospital or a normal hospital.
In spite of doing all those things and the safeguards we have in Bill 108, either when you go to court for that guardianship or when you validate a power of attorney under Bill 108, we are now saying under Bill 109 that we're emasculating that authority by saying: "If the person who is incapable now complains, we're going to review the whole thing over again. We're going to go back through the whole process again. We're going to provide another review process as to whether or not this person should be admitted to the hospital."
You already have to deal with the Mental Health Act, and we've dealt with a close scrutinization of who this guardian is. This guardian has to put forward a plan of care for this person when he validates the power of attorney in front of the official guardian or before the court. So the limitations are already placed upon this guardian as to what he or she can do in order to take care of, normally, his or her son or daughter or sister or brother, and in a lot of cases we're dealing with the specific disease of schizophrenia.
I just think it's going to discourage and make the life of those kinds of people who need treatment more miserable. If we have provided under Bill 108 an opportunity to have these people treated as the official guardian sees as reasonable or the courts see as reasonable, why are we, in Bill 109, gutting basically what we've done in Bill 108?
Maybe we would have been better off then not to put any of the stuff in Bill 108, because I think that in every case, because of the nature of that particular illness, schizophrenia, you're going to have every schizophrenic patient taking advantage of section 29.1, delaying treatment, and you're going to make it very difficult to get these people under proper care. That's what I put forward as why I think 29.1 should be wiped out of the act, and I really hope the government will give that serious consideration.
Mr Wessenger: We will be opposing this motion on the basis that it's a balancing of rights. However, I think I will indicate that we're going to have counsel take a look at perhaps the narrow situation of the Ulysses contract to see if something can be worked out that might be appropriate in those circumstance with respect to Bill 108 and this act. As I say, we'll be opposing this particular motion, but we're having counsel take a look at the situation with respect to the Ulysses contract.
Mrs Sullivan: I suppose that's some reassurance, but not a lot. I agree wholeheartedly with Mr Sterling in putting forward this amendment. I think this recommendation was also included in the Ontario Hospital Association recommendation. Their conclusion was as ours was and certainly as Mr Sterling's was, that this provision of this bill nullifies the power of attorney and defeats the purpose of the Ulysses wills. We think it shouldn't be here and we'll be supporting this amendment.
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Mr Winninger: Just a couple of points: I concur with what Mr Wessenger has already said, of course, but I note with some interest that subsection (3) provides that the decision to admit the person to the facility may take effect, and the treatment may be administered, pending the determination of the application.
I seem to recall, I believe it is under section 33 or 35 of the Mental Health Act, that if there were an appeal of a substitute consent to treatment decision, the treatment couldn't go ahead until the appeal avenues had been exhausted. That may have been changed. That really did tie the hands of the people seeking to treat a patient, whereas here it appears the decision to admit and the treatment may be administered pending the determination of the application.
I don't think this in any way emasculates the role of the substitute decision-maker. There has to be some accountability. Substitute decision-makers aren't always perfect, and having a review board composed of whoever -- a lawyer, a psychiatrist and a lay person -- may be not only a safeguard but may provide some relief to a substitute decision-maker who might wish to have his or her decision validated by a review board and therefore add a little additional weight to it.
I think it's a good safeguard to have, where you're contemplating some very intrusive interventions, first of all, admitting the person to the facility, possibly against his or her will, and then treating. So I think this is not in any way diminishing the role of the substitute decision-maker. It may enhance it.
Mr Sterling: I think we also have to be practical in terms of time, in terms of the physicians involved, the health care providers, the psychiatric hospital, the hospital. What purpose does this serve? You say the treatment can continue. I'm glad that section's in there, but if the admission sticks and the treatment continues, what is the purpose of this review if there is a parallel appeal being made under the Mental Health Act, which I think in 99% of these cases the patient would have? All you're doing, in my view, is making more work and not really providing an additional right for anybody.
Mr Winninger: With respect, I wouldn't mind hearing from Mr Sharpe on this, because I suspect there is a very important role the review board procedure can play here.
Mr Gilbert Sharpe: Historically, there's always been some question legally as to whether a substitute, a family member, can sign his loved one into a hospital in order to get the treatment he needs. The Public Hospitals Act, for example, talks about substitute consent to treatment in the hospital, but it doesn't talk about how you get them in if they're incompetent to admit themselves.
I guess the practice has been just to sign them in and no one's questioned or perhaps challenged that. But when we were developing the legislation, the issue arose: What if the person doesn't want to go into the hospital or the nursing home or whatever the treatment setting is? Should they be forced in? It's a form of committal. If it were the Mental Health Act, of course, they'd have to meet certain stringent criteria and have rights of review and so on.
The thought was, "We don't want to prevent the care." This isn't just subsection 22(9), where it's an emergency; this is section 19 as well, where it's just ordinary care. The person is seen to be incapable by a health professional and then the substitute, in getting him the treatment he needs in a hospital, is given the authority to sign him into hospital even if he's got -- well, now they're there. They don't want to be there and they don't feel it's appropriate, so we felt it was fair to give them a right of review. Now that they're in hospital or a nursing home, wherever they are, if they still feel that they don't want to be there -- they've kind of been committed, from their perspective; they didn't want to go in in the first place and they were forced to simply by a signature of a relative -- they'd have access to the board.
The Ulysses contract concept wasn't there, of course, when we originally were conceptualizing this, and it may be that for people like a chronic schizophrenic who contemplated in advance that he or she may have to be readmitted a series of times and specifically recognized that in his power of attorney, perhaps that should be an exception to this process so that if he's done that, then he doesn't have a further right to go to the board, although the criteria under subsection (4) of the section, clause (d), say, "the person's views and wishes." I imagine that even there, with the Ulysses contract, the appeal would be quickly disposed of by simply saying, "Their views and wishes are set out in this power of attorney and there they are." Whether or not that would be determinant I don't know.
We saw this as an important facilitating measure to make sure that in the usual course, family members could authorize the admission of their loved ones to appropriate health care settings to quickly get them the treatment they need and that treatment should proceed. But if they don't want to go, we shouldn't look on this as a way of railroading them in in cases where perhaps there has been some abuse, where family members acted a bit hastily. It was seen as a safeguard for those people who object to the admission, given that it's really such a loose mechanism, with no kind of formal committal standards or anything, or any procedures or any other safeguards.
Mrs Sullivan: Once again, I'm very concerned with the explanation of counsel when you look at the situations to which this section would apply. A child who has been determined to be incapable of making a decision and a parent has taken that person to the hospital on the recommendation of the physician for treatment, while the treatment may commence, could launch an appeal to the board for a review of what is a normal process in family life.
We had before us instances and examples of the Alzheimer patient who, once in a nursing home, says, "I want to go home," and when taken home says, "I want to go home." What kind of an objection is that, and could an appeal be launched in those circumstances?
I think there is a clear override of the power of attorney in this section and I think subsection (3) of this section is really small compensation for the difficulties this entire section is going to bring to not only treatment of mental illness but of physical difficulties as well.
We talked, I think yesterday, about the drug addict who may be taken to a place by a substitute decision-maker for treatment and who may protest. Clearly, that person isn't going to have a chance if the objection is expressed in a way that launches an appeal.
Mr Sterling: There may be some argument with regard to putting somebody in a hospital which is not confined by the Mental Health Act, as I understand it, but why would section 29.1 include a psychiatric institution, a psychiatric facility? Doesn't the Mental Health Act already give a right of appeal in terms of the admission, even though they have a substitute decision-maker?
Mr Winninger: I've got the section I think you're referring to of the Mental Health Act, but that's dealing with someone who's deemed incompetent to consent to treatment, and there's appeal procedure there. Here we're also dealing with admittance in the case.
Mr Sterling: Under the Mental Health Act, you have a right to appeal your admission to the psychiatric facility.
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Mr Winninger: Of course.
Mr Sterling: So you're not doing the same thing.
Mr Winninger: Your point is, why do we mention psychiatric facility here when there are remedies available under another statute?
Mr Sterling: Yes.
Mr Winninger: Again, I'll have to ask counsel.
Mr Wessenger: Yes, I think it would be helpful to have counsel clarify here again.
Mr Sharpe: The Mental Health Act review of admission deals only with committal, involuntary patients who are committed by a doctor. The only other ability to ask for a review would be young people between 12 and 16 who are signed in by their parents. They can ask for a status review on many of the same criteria as exist in subsection (4) of this provision and that's being replaced by this. But the law is very unclear as to whether a family member can sign a voluntary patient, so to speak, into a psychiatric facility.
If someone has chronic schizophrenia and is now incapable of making decisions, his nearest relative or substitute under the Mental Health Act does not have clear authority to sign him in. For years we've been advising that Ontario Friends of Schizophrenics approach a lawyer to obtain committeeship of the person under the old Mental Incompetency Act, which we know is very difficult and expensive. That's one of the main reasons for 108, but that's been a very difficult hardship for those people to deal with. This provision will now allow, even in situations of objection, the relative to sign a person into a hospital that will then permit a review by the person once he's in.
But there's no provision currently in the Mental Health Act that affords a patient who has not been committed but has been signed in by a relative a chance to ask for an appeal. As I say, I think from a legal perspective, that authority does not exist in any event, unless they've obtained committeeship or guardianship. The only real appeal of status in the Mental Health Act now would be, if they've been committed by a doctor, then they can go to the review board, or if a young person has been signed in by a parent, a person under 16, 12 or older, then there are the competency reviews. Of course, if someone's found incapable, he can ask for a review of that, but that really doesn't deal with admission of a voluntary patient.
Mr Sterling: I guess what I'm asking for is, if you feel it's necessary to cover that situation, can we not exclude those guardians and attorneys for personal care who have gone through the validating process under Bill 108 or have been appointed guardian by the official guardian and put forward a plan, they've checked the competency basically of this guardian? Can we take them out of section 29.1 in order to not duplicate the process and can we take out those patients who have been committed under the Mental Health Act so that again we're not duplicating the process, we're not tying the hospital up, we're not tying everybody up in terms of another process which we may not need?
Maybe I'll stand down this motion, and perhaps counsel and the parliamentary assistant could have a look at it and perhaps we can come up with a workable solution.
The Chair: Do we have unanimous consent to stand this one down? Agreed? It's stood down.
Any discussion on the government reprint on section 30? Agreed? Carried.
Government motion on subsection 31(1), French version.
Mr Wessenger moves that the French version of subsection 31(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by,
(a) striking out "n'est pas représentée par un avocat" in the fourth line and substituting "n'a pas de représentant en justice"; and
(b) striking out "faire représenter la personne par un avocat" in the third and fourth lines of clause (a) and substituting "que soient fournis à la personne les services d'un représentant en justice."
Mrs Sullivan: Is this amendment to avoid confusion with the Advocacy Act?
Mr Wessenger: I'll have to ask legislative counsel on that one.
Mr Beecroft: The purpose of this amendment is simply to ensure that the French version of this act is the same as the English version.
Mrs Sullivan: And the advocate isn't mistaken for the avocat under the Advocacy Act?
Mr Beecroft: No, there's no confusion about that.
The Chair: Further discussion? Seeing none, we'll move to the vote.
Motion agreed to.
The Chair: Next is the government amendment on the French version of subsection 31(2).
Mr Wessenger moves that the French version of subsection 31(2) of the bill, as reprinted to show the amendments proposed by the minister, be amended by,
(a) striking out "une personne est représentée par un avocat" in the first and second lines and substituting "les services d'un représentant en justice sont fournis à une personne" and
(b) striking out "honoraires d'avocat" in the fifth line and substituting "frais de justice."
Motion agreed to.
The Chair: Government reprint subsection 31(3)? Agreed? Carried.
Government reprint subsection 35(1)? Agreed? Carried.
Government reprint subsection 35(2)? Agreed? Carried.
Government reprint, French version, subsection 35(5)? Agreed? Carried.
Government reprint subsection 36(3)? Agreed?
Mrs Sullivan: I think we need some amendments to this section. We've had some amendments with respect to time in previous sections, moving from the seven-day period to 48 hours. I think we need a comparable amendment to this section as well. I don't think we've done those. Subsection 36(2) and subsection 36(3), if implemented, will in fact render inoperable the previous amendments with respect to time.
Mr Winninger: How can you have a hearing in 48 hours? Is that feasible?
Mrs Sullivan: We passed that.
Mr Wessenger: No. I will ask counsel to explain.
Mr Sharpe: The seven days to 48 hours that we did earlier was to ensure that, with a patient who has been given rights advice and then does nothing to exercise his right, you don't have to wait a week before you can proceed with the substitute's consent. But this is really quite different. This has to do with notices and procedures of the board itself, and these are time periods that are in force under the Mental Health Act that would be a reasonable time before a hearing can start and things of that sort.
Mrs Sullivan: Thank you. I apologize.
The Chair: Further discussion on subsection 36(3) in the government reprint? Agreed? Carried.
Discussion on the government reprint 40.1? No discussion? Carried.
Government reprint subsection 41(2)? Agreed? Carried.
Government reprint on subsections 41(4) to (7)? Agreed? Carried.
Government reprint, subsection 42(1)? Agreed? Carried.
We have a PC motion on section 42.1.
Mr Jim Wilson moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:
"Rights adviser availability
"42.1 The Minister of Health shall ensure that rights advisers are available twenty-four hours a day, every day, to perform the obligations imposed on rights advisers under this act."
Mr Jim Wilson: This motion goes back to a previous motion introduced and discussed by Mr Sterling, which failed. That was an attempt by us to ensure that rights advisers are available in every corner of this province, 24 hours a day in small communities.
Mr Sterling's suggestion, which was defeated by the government, was that members of the Law Society of Upper Canada be permitted to be rights advisers and be part of this legislation in that sense. That was defeated by the government. We see no other option. If this legislation is to be effective, if its provisions are to be dealt with and used in a timely fashion, the government has an obligation to ensure that rights advisers are available when needed at any hour of the day.
There are tremendous costs involved, but the government seems to have taken that policy decision to proceed with this legislation at a tremendous cost. Our concern here and one of the reasons we were just conferring about this amendment would be something Mrs Sullivan has often spoken about, and that is, will hospitals and facilities be required to pay for these rights advisers?
That question the government certainly refused to answer. It has refused to be honest and straightforward with the public on Bill 109, Bill 74 and Bill 108 in terms of how much advocates will cost and how many there will be. The cost of running the commission has never been established or communicated to the committee or to the public; none the less, we see no option. If the government is making a commitment to making this legislation work, you have to have rights advisers available. You've refused the commonsense approach, which was to have lawyers called upon.
Mr Wessenger: We'll be opposing this motion for two reasons. The first is an implementation issue and, second, we provided that rights advice does not apply to emergency situations. Therefore we feel that such a 24-hour requirement would not be a necessity in any event.
Mrs Sullivan: We are still very concerned that we haven't heard the responses from the parliamentary assistant and the minister with respect to where rights advisers will come from, how they will be paid, how they will be trained, their availability, not only on a 24-hour-a-day basis but in communities that aren't downtown Toronto, which frankly is most of the province.
There are new rules with respect to patients' rights which are, we think, important ones, but we have to be certain that if those new rules exist, there's an adequate way of ensuring that people have access to the application of those rules. We want more answers.
The Chair: Further discussion? Seeing no further discussion, we'll proceed to the vote on the PC motion on section 42.1. All those in favour? Opposed?
Motion negatived.
The Chair: It's my understanding that there are some important appointments coming up at lunchtime, so I think we could finish this off shortly after lunch, and then we'll be proceeding with Bill 74. This committee stands recessed until 2 pm this afternoon.
The committee recessed at 1155.
AFTERNOON SITTING
The committee resumed at 1420.
The Chair: I call this meeting back to order. We will be proceeding on the government reprint, subsection 43(1). Agreed? Carried.
Government reprint 43(2). Agreed? Carried.
Government reprint 44(1). Discussion? Agreed? Carried.
Government reprint 44(2). Discussion? Agreed? Carried.
Liberal motion on section 45, Mrs Sullivan.
Mr Wessenger: I have one first on clause 45(e).
The Chair: Sorry; we have a government motion on 45(e).
Mr Wessenger moves that clause 45(e) of the bill, as reprinted to show the amendments proposed by the minister, be struck out.
Mr Wessenger: The purpose of this is that we no longer have prescribed health facilities under section 10 of the bill.
Motion agreed to.
The Chair: Liberal motion on clause 45(h).
Mrs Sullivan moves that subsection 45 of bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following clause:
"(h) prescribing the form of a notice under subsection 10(2) or (3)."
Mrs Sullivan: The effect of this is to require the minister to develop the forms that would be used by the practitioner in providing notice of rights to patients, the right to consult a rights adviser and the right to make an appeal to the board. The printed motion was blank in those places because I wasn't sure where they were going to end up when we were doing this, but "(2) or (3)" is the appropriate way to put it, I'm told.
Mr Wessenger: Yes, we will be supporting this amendment.
Mr Beecroft: A minor thing: Could I suggest that this clause be placed after clause (b), because (b) deals with one kind of form, this would be another kind of form and then clause (e) deals with other forms.
Interjection: Clause (b.1) then?
Mr Wessenger: Clause (b.1); I'm agreeable to that.
The Chair: That would be clause 45(g.1)?
Mrs Sullivan: Clause (b.1), I believe.
The Chair: Further discussion? Seeing none, we'll proceed to the vote. All those in favour of the Liberal motion?
Motion agreed to.
The Chair: PC motion, clauses 45(h) to (k).
Mr Jim Wilson: Just before I read it, I want to note that we can delete (h) as written in the motion before members and read the letter following.
The Chair: Mr Jim Wilson moves that section 45 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following clauses:
"(h) establishing minimum qualifications, standards and a code of conduct for rights advisers;
"(i) establishing a review procedure for dealing with complaints from any person relating to rights advisers;
"(j) establishing training programs for rights advisers."
Mr Jim Wilson: I think all members will note that this is fairly self-explanatory. It is our preference that the cabinet set out the standards, qualifications, establish the training programs and establish a review procedure for the public or any person who can bring complaints forward regarding rights advisers. We think it's important to safeguard. I don't think it should be left up to the Advocacy Commission. It's something the government should be responsible for directly as members of provincial Parliament. Certainly, our constituents will come to us and they will certainly see this as a government responsibility.
Mr Wessenger: We'll be opposing this amendment because we feel it's an implementation procedure, and it's certainly not the intention to prescribe by regulations with respect to these matters.
Mrs Sullivan: I'm puzzled by that response, because of course in Bill 74 similar provisions were included in the regulations with respect to training of advocates, and also providing a review procedure. All the rights advisers under this act will not be subject to the Advocacy Act. We've had that discussion. Although we attempted to ensure that there was a standalone bill with respect to rights advisers, that clearly is not the case. The government would not accept that. As a result, there will be a group of rights advisers who can be appointed by the minister who will have, under this act, no training, no minimum qualifications and no code of conduct. There will be no review procedure for dealing with complaints about their actions.
There's a dichotomy here. I don't understand why the ministry could not prescribe these training and code of conduct requirements and a review procedure under this act for those rights advisers for whom there is no other place for training or disciplinary review.
Mr Wessenger: I'll have ministry staff give further explanation in this regard.
Mrs Sullivan: It appears there's no answer. Maybe the parliamentary assistant would like to reconsider his opinion.
Ms Juta Auksi: I guess what I'm being asked to comment on is that the regulations would not be able to establish something that isn't up front in the act, that the regulations would set out the details, not establish something new that isn't in the statute itself.
My expectation would be that if the ministry does set up separate rights advice activities, for a lot of reasons it would draw heavily on what the Advocacy Commission does in its part of the administration of the rights advice program. One wouldn't want to have completely separate and entirely different kinds of quality controls or whatever.
I don't think there's any objection to the policy that's suggested here of being able to complain about an advocate, certainly ensuring that it's delivered in a quality kind of way, but in fact the Consent to Treatment Act doesn't have in the statute itself, as the Advocacy Act has, something to which this would just be filling out the detail.
Mr Jim Wilson: I don't really accept that response. This act does establish rights advisers and I think it's incumbent upon the government to ensure that there are minimum qualifications etc, as spelled out in the motion. The government wouldn't make these regulations, I hope, in a void. They would be communicating, I assume, with the Advocacy Commission. I just don't think we can let this legislation pass without having some comfort that these safeguards are contained therein. To say that what I'm suggesting in my motion doesn't refer to anything contained in the body of the act -- I just don't see that.
We're talking about establishing regulations to give guidelines and a code of conduct for rights advisers, which are much a part of this act. I find it a rather lame excuse and don't accept it. I agree with Mrs Sullivan that its mind-boggling you wouldn't want to be responsible up front and ensure that this legislation contains safeguards for the public, for vulnerable people and for persons who may find themselves -- which is all Ontarians -- subject to this consent act.
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Mrs Sullivan: I too don't concur with the advice provided by the policy analyst. We know that under Bill 109 there are two categories of rights advisers: One group of rights advisers are those authorized under the Advocacy Act; the second group are rights advisers appointed by the minister as a member of a prescribed category in certain circumstances.
We've had an indication before this committee, because my amendment to that effect was defeated, that many of those people in the second category will not be independent of the facilities in which they work. They could be employed by a hospital, a nursing home or another facility. As this act stands now, there will be no criterion under which those people operate. They are appointed and they act. There's no code of conduct, no standards, no indication that there's any intervention of the ministry, even in terms of describing what the responsibilities are and in providing the terms of reference with respect to those responsibilities.
This amendment that has been proposed by my colleague clears that up. We certainly know and have come to trust many of the rights advisers who now operate in institutions. I think of chaplains, for example, in hospitals who provide that service from time to time, and social workers in other places. Their responsibilities here, however, are different. There is a new perspective to their responsibilities to those which they've acted upon before.
We think that at minimum the minister should be required to provide an indication of the qualifications, the standards and the code of conduct for those people exercising new duties and for people on whom those duties are being exercised, to have a method of review.
Mr Wessenger: I think it might be helpful to have some comment from counsel with respect to what the procedure is under the Advocacy Act, because I'd be interested to know how it's dealt with under that act so that we have some guidance to this committee.
Ms Carla McKague: I understand we're talking about complaints procedures. Is that correct?
Mr Wessenger: That's correct, yes.
Mr Jim Wilson: And training and qualifications.
Mrs Sullivan: Training, code of ethics, standards and qualifications.
Ms McKague: At the moment, this is still in a state of flux. We still have not totally resolved this. There are a number of motions stood down that deal with these issues. I can tell you what the situation is in the act as it reads at the moment, which is that there is a requirement -- I'm just looking for the right clause here, 7(1)(k.1) -- requiring that the commission "establish criteria and procedures applicable to,
"(i) the authorization of community agencies...to perform functions on behalf of the commission,
"(ii) the authorization of persons...to provide advocacy services on behalf of the commission...
(iii) the suspension or revocation of an authorization...."
Clause (k.2) requires the commission to "establish, subject to the approval of the Minister of Citizenship, and make available to any person on request, a written review procedure for dealing with complaints from any person relating to advocates," and clause (k.3) to "provide training programs to advocates," and there are provisions for the development of codes of standard, codes of conduct for advocates. These are not at this point fleshed out in the act. Whether they will be by the time the week is over is a question I can't answer yet.
Mrs Sullivan: With apologies, counsel, that is totally irrelevant. We are talking about a category of rights advisers that are not included under the Advocacy Act. We know certainly the intention of the government is in fact, under that act, to use the regulatory process to develop the training and other procedures with respect to advocates. We are talking in this case about rights advisers who are not subject to the Advocacy Act and who are appointed by the minister.
Ms McKague: I'm sorry. I misunderstood the question.
Mrs Sullivan: The amendment on the table is with respect to dealing with the training, the qualifications and the standards for those rights advisers who are in category B, appointed by the minister in certain circumstances to work in certain places, and establishing also a process for dealing with complaints with respect to those rights advisers.
If an individual has a complaint with respect to a rights adviser in that particular category, there is no option for him or her in terms of requesting a review. The rights adviser may in fact be providing information and advice with respect to treatment that is totally beyond the bounds and boundary of the rights advice that the Consent to Treatment Act contemplates.
Without any kind of a check or balance, the patient once again can have unfortunate advice provided to him on which decisions could be made. With all the well-meaning in the world, a person could be told by a rights adviser who is named and has no other parameter around which to work that a certain course with respect to the treatment itself might be appropriate. That is clearly not what the act contemplates, and we want a mechanism to ensure that in those circumstances there is some protection for the patient and there is some information and some standards around which the rights adviser can act.
Ms McKague: The brief answer to your question then is that the Advocacy Act does not contain any provisions for dealing with rights advisers other than those provided through the commission process.
Mrs Sullivan: Precisely.
Mr Jim Wilson: Just to add to the debate, it also strikes me that the government has the cart before the horse here. We have in this bill all kinds of neat things for rights advisers to do, but you haven't got the guts to put down or to take the responsibility on to yourselves as a government to set the minimum qualifications and standards and code of conduct, review procedure for complaints and a training program for these people.
Having set up the new profession of rights adviser, you're leaving it out there for an independent, arm's-length Advocacy Commission to set all your standards, training and qualifications, and you're prepared to put this bill into law without really telling the public or being prepared to spell out yourselves who these people are and what their qualifications are.
I think in order to have any public confidence in this legislation, the government has to set out the minimum qualifications and standards so that people know and have some respect for the rights adviser who's infringing upon their lives, is going to see them at some point in their lives. You owe it to the future rights advisers to give them a basis upon which to build their profession.
It's just totally irresponsible to let this piece of legislation go out into orbit, as it were, leaving it up to some arm's-length commission, without taking the authority upon yourselves to set the minimum standards and show some leadership in this area. I don't think the public can expect to accept this legislation easily given that there are so many loose ends untied here.
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Mr Wessenger: In spite of Mr Wilson's rhetoric, I think we probably can live with this amendment, so I've reconsidered and think we're prepared to accept it.
Mrs Sullivan: Hear, hear. Good stuff.
The Chair: Mr Sterling.
Mr Jim Wilson: He has no comment any more.
Mr Sterling: I might argue you back, but no.
Interjection.
Mr Wessenger: We worked prior actually. We made up our minds before.
Mr Jim Wilson: I was buying you time.
Mr Sterling: I have no comments.
The Chair: Further discussion? Seeing no further discussion, we'll proceed to the vote on the PC motion on clauses (h) to (j). All those in favour? Opposed?
Motion agreed to.
The Chair: PC motion on subsection 45(2).
Mr Jim Wilson: I think this motion really follows what the government has just allowed to pass.
The Chair: Mr Jim Wilson moves that section 45 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:
"Review procedure
"(2) The Ministry of Health shall provide written information about the review procedure established under clause (1)(i) to any person who requests it."
Mr Jim Wilson: Simply, we want to ensure that all persons who may request are provided with full information about the review procedure which they're entitled to access.
Mr Wessenger: We have no objection. We support that one.
Mr Jim Wilson: Thank you, Mr Wessenger.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the PC motion on subsection 45(2)? Opposed?
Motion agreed to.
The Chair: I have a Liberal motion on section 45.
Mrs Sullivan moves that section 45 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:
"Consultations
"(2) Before making regulations, the Lieutenant Governor in Council shall consult with representatives of persons who may be affected by the regulations."
Mrs Sullivan: This amendment is put on the table to ensure that there is a consultative process with respect to the implementation of this bill, with respect to the educational programs that will have to accompany it, with respect to the discussions with every health practitioner in terms of ensuring that they will understand all the provisions of this bill and that indeed, when the bill is implemented and the regulations are drafted, they are not the sham and shame, frankly, that the process with respect to the drafting of the bill itself was.
Mr Wessenger: We'll be opposing this amendment as we opposed a similar amendment in Bill 108. It's a matter of implementation. Certainly the matter of consultation is a matter which should be dealt with as a political rather than a legal matter.
Mrs Sullivan: It certainly should be dealt with in a lot more efficient and effective manner than the rest of the approach to this and the other companion legislation has been.
The Chair: Further discussion, Mr Sullivan. Pardon me. Mr Sterling. I apologize. It's only the second time this week.
Mr Sterling: Mr Chairman, I don't know who should be insulted.
I want to indicate that I'm going to oppose this amendment because it doesn't have in it that there has to be consultation with the minister, and unless we have something in writing that the public has a right to consult with the minister, even the elected representatives of the people never get a chance to consult with the minister. That's why I am going to oppose this amendment. It should be much stronger in requiring the minister to come in front of the committee and meet and consult with the people, which this Minister of Health seems so reluctant to do on this legislation.
The Chair: Further discussion? Seeing no further discussion, we'll proceed to the vote. All those in favour of the Liberal motion on subsection 45(2)? Opposed?
Motion negatived.
The Chair: Government motion on section 45.1.
Mr Wessenger moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:
"Conflict with Child and Family Services Act
"45.1(1) If a provision of this act conflicts with a provision of the Child and Family Services Act, the provision of the Child and Family Services Act prevails.
"Repeal
"(2) Subsection (1) is repealed on the third anniversary of the date this act receives royal assent."
Mrs Sullivan: I'm very interested in this amendment. I think it possibly could relieve some of the concerns that have been expressed by children's aid societies and others with respect to the interchangeability of the Consent to Treatment Act and the Child and Family Services Act, and the children's aid society workers will in fact see and understand that their statutory duties under the CFSA have priority.
There are two questions I want to put to the parliamentary assistant. One is, what is the rationale for subsection (2) of the amendment? The other is, given this amendment, does the government intend to not put forward the amendments to the Child and Family Services Act which are printed in Bill 110?
Mr Wessenger: With respect to the first question, subsection (2) is basically at the request of the Minister of Community and Social Services, that she feels a time requirement would assist her in getting the appropriate amendments through her ministry.
Mrs Sullivan: And with respect to the second question?
Mr Wessenger: I don't think it's been decided at this stage as to what the effect on Bill 110 will be. We have to review that, assuming this is passed. There may be some sections that will be inapplicable and we'll have to look to see which ones are inapplicable and which ones are not.
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Mrs Sullivan: The concern I have with respect to your first answer is that the Minister of Community and Social Services, I assume, has indicated in an agreement that she will proceed with amendments to the CFSA which would ensure within that bill that the provisions of that act are not in conflict with the Consent to Treatment Act and that indeed they have priority. We have no time line for the introduction of that bill and for the necessary public consultations associated with it. We understand that the interventions of the children's aid societies came late in our proceedings; they didn't come until the second round of hearings and in fact there was little information and considerable concern expressed. The question is, what if the minister can't complete her consultations and the appropriate new act is not brought forward within that three-year period? Are we creating a problem with subsection (2) included in this motion that three years hence may well be forgotten and may well create problems?
Mr Jim Wilson: This is a very important amendment and I would like to have spelled out, for all committee members, the areas of conflict between this legislation and the Child and Family Services Act, if that can be done by counsel. It's important we understand exactly what we are doing here because what we are doing is really forcing the Ministry of Community and Social Services to bring its act into conformity to this act. What I'm worried about is that, since I think that in some areas Bill 109 is rather a liberally worded, very much NDPish type of legislation -- I'd be happy to explain that term, if you have a half-hour -- we may be forcing a watering down of the CFSA. It's important we all know exactly what we're doing here, so I would ask counsel, through the parliamentary assistant, Mr Wessenger, to give us some meat on the bones.
Mr Wessenger: That's a question I'll ask counsel to respond to.
Mr Sharpe: The opinion requested of the Ministry of Health that was tabled here on August 31 took great pains to review all the provisions of the Child and Family Services Act and compare them to Bill 109. The conclusions in that opinion were that, with the possible exception of the psychotropic drugs in 132, there didn't appear to be any apparent conflicts with 109. For example, the legislation in 40(9) talks about a child care worker having the same authority to consent to medical treatment or examinations that a parent would have. If the young person were mentally competent to refuse treatment, the parent would not be able to compel that young person to take it, under common law and under Bill 109, which reflects the common law. So our view was that there was no conflict except possibly with the under 16 and psychotropic drugs and we go through a careful analysis on that issue.
But what was heard from a number of representatives of children's aid societies at the last round of hearings was that the practice may be somewhat different than that. It's just our legal opinion that there doesn't appear to be a conflict. There may be lawyers representing children's aid societies and others, such as child care workers, who hold a different view, and perhaps those views are reflected in the practice of some of these individuals. So what this provision would do, to the extent that there is an apparent conflict based on the practice with children's aid societies and child care workers and so on, is make it clear that the CFSA takes priority.
Mr Jim Wilson: So what one would hope would happen in the next three years is that Comsoc would sit down and consult with the children's aid societies to further get out of them, extrapolate from them, what their view is and how they're handling this legislation. If that's the case, and I appreciate the time frame and I appreciate that there is a time frame to force Comsoc to do that, you've got my support on this.
The Chair: Seeing no further discussion, we'll proceed to the vote. All those in favour of the government motion on section 45.1? Opposed?
Motion agreed to.
The Chair: A Liberal motion on section 47.
Mrs Sullivan moves that section 47 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:
"Limitation
"(2) Despite subsection (1), this act shall not come into force before the first anniversary of the day on which it receives royal assent."
Mrs Sullivan: This amendment is put forward to underline the absolute necessity of the consultation with respect to the implementation of this act. The first day that this act comes into force is going to be an in-day in terms of an educational process, an information process, an involvement of stakeholders in determining (a) the regulations and (b) how those regulations are going to be put into place.
In my view and in the view of other people, the rushing forward into the development of forms, the development of wording on forms, the educational processes and involvement of the health professions, of the facilities that are very much affected by this act and so on, cannot proceed in a hasty manner. This section provides for a year of preparation before the act would come into force. In my view it would be premature if it came into force on any day before that, and clearly the intent is an intent of involvement and careful preparation, unlike what we have seen with the rest of the parts of this bill.
Mr Wessenger: We'll be opposing this motion, as a similar motion was made with respect to Bill 108. I think it's a matter that should be the government's prerogative at what date the bill is proclaimed.
Mr Sterling: I would have hoped that the parts dealing with advance directives could be proclaimed almost immediately and therefore I find difficulty. When you proclaim the act, you don't necessarily have to proclaim all sections of it and I would find that clause restrictive in terms of in some ways setting down some formal requirements with regard to living wills and therefore I am forced to oppose this motion.
Mr Jim Wilson: While I appreciate and agree with much of what my colleague has just said, I am really of a different mind, though when it comes to the vast majority of the contents of these pieces of legislation and this legislation in particular, I don't think Mrs Sullivan goes far enough. I think we should have a couple of anniversaries go by before this stuff is proclaimed and hence I won't be supporting the Liberal motion.
Mrs Sullivan: I'd just like to point out to my friend from the third party that the amendment does say "not before the first anniversary," which could mean substantially longer.
Mr Jim Wilson: Well, say "not before the second anniversary."
Mrs Sullivan: None the less, the intent is to underline that even in the case of advance directives there will have to be education, training and bringing people up to speed. There will also have to be a funding commitment, about which we have heard not a word.
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The Chair: Further discussion? Seeing none, we'll proceed to the vote. All those in favour of the Liberal motion on section 47? Opposed?
Motion negatived.
The Chair: We need unanimous consent on the government reprint of the schedule, to move it. Agreed? It's a deletion. Do we have unanimous consent to have it moved? We do. Agreed. Discussion? Seeing none, all those in favour of the deletion of the government reprint of the schedule? Opposed?
Mrs Sullivan: Would the parliamentary assistant like to speak to this?
Mr Wessenger: Speak to what?
The Chair: The deletion of the schedule.
Mr Wessenger: I have to find what was in the schedule.
Mrs Sullivan: That's why we want you to speak to it.
Mr Wessenger: Evidently, the schedule dealt with a definition of "health practitioner" and the schedule was removed because it's no longer necessary due to the changes to the definition of "health practitioner." That was when we listed all the items. We took it out of the schedule and put it in the act. That's the reason for that.
The Chair: All those in favour of the deletion of the government reprint of the schedule? Opposed? Carried.
We'll go back to the ones we stood down. On the government reprint 1(1), is there discussion?
Mrs Sullivan: Why was this stood down?
Mr Wessenger: The reason it was stood down, I understand, is that there were some amendments with respect to the definition of treatment. It was stood down until those amendments were dealt with. There were some amendments.
Mrs Sullivan: To 1(1)?
Mr Wessenger: Yes.
Mrs Sullivan: I don't like the fact you didn't take my amendments.
The Chair: You're right. They were defeated in the process. Seeing no further discussion, we'll proceed to the vote. All those in favour of the government reprint on subsection 1(1)? Opposed? Carried.
Next is the Liberal motion on subsections 10(2) (3), (4), and (5).
Mr Sterling: I thought we stood down section 4.
The Chair: That's an entire section that was stood down.
Mr Sterling: We're not going through it?
The Chair: We aren't voting on whole sections.
Mr Sterling: Oh, we're not? Okay.
The Chair: No, we've agreed to keep all sections open until the end of clause-by-clause on all bills.
Mr Sterling: My apology, Mr Chairman.
The Chair: Thank you, Mr Sterling.
There was a Liberal motion. No, that wasn't even moved, was it? Sorry.
Mrs Sullivan: Mr Chairman, I believe that with the redrafting of subsections (2) and (3) and the amendments that were proposed, this amendment becomes redundant. If I find differently, however, I will file it before the end of the session.
The Chair: So you'll withdraw that then?
Mrs Sullivan: Yes indeed.
The Chair: It was alternate 2a, and the last one that was stood down was the PC motion on 29.1, moved by Mr Sterling.
Mr Sterling: My motion, as you remember, was to delete 29.1, and my basic objection to 29.1 was that it was going to provide a duplication of the right of a person who is incapable to challenge the fact that he or she was being confined against his or her will either in a hospital or in a psychiatric facility.
I think during the discussion this morning there was not a clarity, or it was not clear to me the differences with regard to what was happening with regard particularly to a patient who had given a power of attorney which was validated under Bill 108 or a guardian who was appointed under Bill 108. It was not clear to me that those people are then deemed to be voluntary patients and therefore do not come under the Mental Health Act and don't have any protection or procedure as to whether or not they should be kept in that institution even though it was against their will.
If this interpretation which Mr Fram gives to me is correct, if that's the understanding, then I do not object to 29.1, because it in fact then gives these individuals an opportunity to have their "incarceration," if you want to call it that, questioned or appealed. I accept that. I am assured by Mr Fram that no one would be committed under the Mental Health Act if he or she was acting under Bill 108. Is that correct?
Mr Wessenger: I guess we should ask Mr Fram, to give him an opportunity just to confirm on the record.
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Mr Steve Fram: The Mental Health Act -- and Gilbert is clearly the expert here -- allows involuntary detention under very specific terms for very specific purposes and essentially uses the police power to protect society against someone who's dangerous to it, or to protect the person against an imminent danger to himself or herself.
The thrust in Bill 108 is to say that's okay for society, the Mental Health Act, but that's not much good for the individual. If somebody's incapable or has episodes and wants to take care of himself by making out a Ulysses contract under section 50 and give authority to an attorney, the attorney with a validated power is taking him to a place for treatment and the standards the person will have if he goes to a psych facility are those of a voluntary patient, just as though he went to any other kind of facility. It's somebody making a substitute decision for them. Similarly, with a guardianship order that provides for their being taken to a psych facility, the safeguards of the Mental Health Act -- that is, the tests to get out -- don't apply. They're there to be treated and if the power is there to detain them and restrain them there during treatment, then they're going to get that treatment whether they like it or not. This provision is the only one that will allow the review of their admission. That's the way I understand the provision.
Mr Sterling: Maybe back in my law days I might have gone into that length of an explanation, but the question was: Is there any duplication? Is there any chance of duplication of process under section 29.1 in the Mental Health Act?
Mr Fram: I don't see duplication for those patients you're concerned about.
Mr Sterling: Do you see duplication for any patients I'm not concerned about?
Mr Fram: I'm not sure how section 29.1 will apply to a person who is involuntarily incarcerated, who meets the criteria of the Mental Health Act. Will this give another route to get before the board? I can't answer that question. Their admission, it seems to me, doesn't come on the consent of another person, so that may be the basis of distinguishing and saying there isn't duplication. I think Gilbert can answer that question much better than I.
The Chair: Could we have legal counsel respond first?
Mr Beecroft: I was just going to say that a person who is involuntarily committed to a psychiatric facility under the Mental Health Act is not there because of a decision to consent to his admission made by a substitute decision-maker.
Mr Sterling: Yes.
Mr Beecroft: All that section 29.1 allows a challenge of is a review of a decision to consent on the person's behalf to the person's admission. No one has consented on the person's behalf to his admission if he's being involuntarily admitted under the Mental Health Act. That would be my interpretation.
Mr Sterling: I guess the question mark seems to be the voluntary patient who goes in and then questions. Is that the grey area we're talking about now, the schizophrenic patient who decides he does need some help and goes voluntarily to a hospital and then decides he wants to challenge the fact that he's remaining there? No?
Mr Wessenger: I think perhaps I should ask legal counsel to respond to that.
Mr Sterling: Is there a grey area? I'm not getting a clear answer here.
Mr Sharpe: Lawyers aren't trained to give clear answers.
Mr Sterling: I know. Politicians are paid to try to get them.
Interjections.
Mr Sharpe: It is possible that someone could be admitted to a psychiatric facility as what we call an informal patient, which means that he wasn't capable of making the choice himself but was signed in by a guardian, and under Bill 109, section 29.1, decided to question that and then would have the review. They would apply and have their hearing under 29.1 by the review board, and subsequently -- I can't imagine this happening, but it's theoretically possible -- the review board might decide to let them go. The doctor in the hospital would feel that it would be dangerous to do that or they couldn't look after themselves or whatever and theoretically could fill out a committal form on them, and pursuant to that form 3, they would then be entitled to a further review by the review board, but this time under the Mental Health Act. Carla?
Ms McKague: I was just thinking it might be helpful to Mr Sterling to know that there's a variant of this procedure already in the Mental Health Act in the case of children between 12 and 15.
Mr Sharpe: We went through that this morning.
Ms McKague: Yes. Those reviews don't occur often, but they have been successful occasionally. It's not a question really of safety or danger; it's a question of whether there's really a need to go so far as to confine someone to a hospital or whether there's a less intrusive way of providing the needed care.
The Chair: Mrs Sullivan, have you been waiting to speak on this?
Mr Sterling: I withdraw.
Mrs Sullivan: I have.
The Chair: Mrs Sullivan.
Mr Sterling: Oh, sorry.
Mrs Sullivan: I'm interested as much in the decision of the substitute who is making a decision to admit the person to a hospital for physical illness as I am in terms of the mental illnesses Mr Sterling has been pursuing. I raised earlier the question of the 13-year-old child with a spinal malformation on whose behalf the parent, as substitute decision-maker, has agreed and consented to a course of treatment within an institution and subsequently to the admission to that hospital. The objection of the 13-year-old to being in the hospital in fact could trigger an appeal, and while the treatment may be administered, the full course of treatment may not be administered, although the child, in order to have the substitute kick in, has previously been determined to be incapable of making that decision.
I think this is really a problematic section. I also see a similar circumstance with an Alzheimer's patient. A person is incapable or a substitute wouldn't be acting.
Mr Sterling: I'm satisfied that the section should stay in and I want to withdraw my motion.
Interjection: Oh, after all that.
Mr Sterling: I need, really, unanimous consent in order to do that, and maybe Mrs Sullivan would still like to vote on that motion. I'm not certain. Is that not correct?
The Chair: You don't need unanimous consent.
Mr Sterling: Okay, fine. I thought I did.
The Chair: Further comments on Bill 109? Seeing none, this committee will stand recessed for a short five minutes to prepare for Bill 74.
The committee recessed at 1519.
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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 meeting back to order. We will be continuing now with clause-by-clause consideration on Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons.
I'd like to make an announcement first that a letter has been handed out from the three House leaders extending time limits for all committee members present.
Mr Winninger: I would like to withdraw a motion I moved in the absence of Mr Malkowski at the earlier stage of clause-by-clause, because I know there's a replacement government motion that will be moved. I would like to withdraw the earlier amendment I moved to section 8.1.
The Chair: Thank you. We'll be continuing where we left off on the Liberal motion, subsections 26(3) and 26(4). This has already been moved by Mrs Sullivan. Discussion?
Mrs Sullivan: This motion relates to limitations on an advocate's access to records in a facility or institution. The limitations would mean that the advocate would not have authorization to obtain records that relate to health education, for a course of study, a program or investigation or research that are carried on by a facility, the information and documents that are compiled and used to improve hospital care or medical practices, records relating to complaints that are made to a college that regulates a health profession and information that relates to persons other than vulnerable persons.
The only exception to this would be that the advocate could have records relating to the complaints if the person who is making the complaints provided a consent.
We clearly want to ensure that hospitals and other facilities where records are kept and where information is used for peer review or for other purposes do not become broadly available to advocates, and that the advocate's access to records is limited to the individual and to the purposes that are very specific to his or her duties.
Mr Jim Wilson: I just note that I think I'm correct in saying that we have introduced a motion that's very similar to this Liberal motion. I would really just echo what Mrs Sullivan has said and indicate that we will be giving very strong support to this motion.
Mr Gary Malkowski (York East): We will not be supporting the Liberal motion. This runs almost exactly counter to the new proposed government amendment adding section 25.1, and there will be a replacement.
Mrs Sullivan: The government motion 25.1 was stood down. That motion related to documents of general interest, including policy manuals and so on. That motion, which I understand has gone back for redrafting and additional clarification, has absolutely nothing to do with the issues that are before us and contained in my proposed amendments to subsections 26(3) and (4).
The issues that are included in subsections 26(3) and (4) are related to specific medical and hospital procedures with respect to research documents, with respect to peer review and with respect to quality management within the institution, and are quite separate from documents which are associated with an individual, to which the advocate under other sections of this act generally has entitlement.
The government motion bears absolutely no relationship to the issues that are included in my motion. The quality management issues at a hospital include general review of approaches to patient care on a team basis. To include those records as part of the general records that an advocate is to have free access to is ludicrous. Every single institution is deeply concerned. The question of the quality management programs and peer review programs continuing in an open and careful way, professional to professional, with open access by an advocate to those records is of some concern.
In fact, the trusting nature and the interrelationship of those peer review efforts are jeopardized by this open access to records with respect to quality control, to peer management and for medical and health education purposes. Certainly, the files within a college with respect to regulatory and disciplinary functions of the college bear little or no relationship to the requirements and needs of records that an advocate has. There should be some protection for those institutions. This is the approach that should be taken in providing that protection.
Mr Jim Wilson: I certainly agree. As section 26 appears in the reprint, there aren't sufficient safeguards. The only safeguard is subject to the Freedom of Information and Protection of Privacy Act. Because of the type of information we're using in quality management programs of a hospital, for example, or records relating to a regulated health profession and the complaints in a regulated college, and particularly point 5 in the Liberal motion, which is the same as the PC motion, "Information relating to persons other than vulnerable persons," what business is it of advocates to go around perhaps seeking sensitive information on individuals? That's not their role. If we allow the bill to stand as reprinted, it certainly gives them excessive powers in terms of information.
It goes back to the debate we had when we in this committee were shut down on this piece of legislation. That centred around the importance of privacy and the importance the public places on protection of privacy and protection of confidential information and documentation about persons. I think it's a very reasonable amendment. If the government won't accept it in whole, I hope it would at least compromise and accept it in part.
Mrs Sullivan: If there is any understanding in this ministry with respect to the efforts that are being made within the hospital sector to improve the approach to patient care, the involvement of team management in doing that, this amendment would be accepted without any question. Clearly, that understanding doesn't exist. The sharing of information and workload, quality-control measures and real attempts to improve not only patient care but delivery of service in a cost-effective way are being made. The records associated with that approach, for the most part, do not relate to individual persons to whom an advocate is providing advocacy services and should not be available in a general way to that advocate. These are internal documents. I tell you that without this protection, the entire quality-management approach is threatened.
Mr Malkowski: I would like to respond to the Liberals' concerns specifically about paragraphs 4 and 5. I would ask the staff to explain those points.
Ms Linda Perlis: Paragraph 4 in the motion relates to records relating to complaints made to a college that are not currently accessible under Bill 74, as the college is neither a facility nor a controlled-access residence nor a program under the act. So paragraph 4 is already dealt with.
I believe section 27 adequately covers the points of concern in paragraph 5, as an advocate under paragraph 2 of section 27 is not entitled to have access to any personal information relating to an individual other than the vulnerable person without that person's consent.
Mr Morrow: I guess I would need all-party agreement on this, but I would be very agreeable to stand this one down.
The Chair: Do we have unanimous consent to stand this down?
Mr Jim Wilson: No.
Mrs Sullivan: We've been through this on this bill. Standing down motions means they don't come back. If I understand counsel to the Ministry of Citizenship, the records relating to complaints to a college are not included in any way in this bill. I have some concerns about that deduction, because indeed the records relate to an individual and the case can be cited.
I will want to refer, re paragraph 5, to ensure that those issues are in fact covered by the bill. However, am I given to understand, with the response from counsel, that the government would be interested and willing to accept the first three paragraphs of my motion, which are key and important clauses with respect to quality control, peer group review in a hospital and other institutions? I see a nod from the parliamentary assistant to the Minister of Health. I think he concurs with that.
Mr Jim Wilson: It will be interesting to see if we can get agreement with the government on this. With the committee's indulgence, I want to read from a second submission by the College of Nurses of Ontario that's dated yesterday. It says:
"A major thrust of both the Regulated Health Professions Act and the report of the steering committee on the review of the Public Hospitals Act is the requirement for quality assurance or quality improvement programs. Both also recognized that quality improvement programs cannot be implemented unless the individuals or institutions involved are able to undertake such exercises without fear that the outcomes can be used against them. Confidentiality of records, with some limited exceptions, is provided under the Regulated Health Professions Act and proposed under the Public Hospitals Act. The wide access accorded to individual advocates and the commission runs counter to the direction and emphasis reflected in the government's focus on ensuring that quality management and improvement activities are put into place.
"Additionally, individuals making a complaint to a regulatory body may not wish records in the control of a health facility relating to their complaint to be accessed by the commission. Allowance must be made for health care facilities to ensure that records relating to regulatory complaints are not released without the complainant's consent."
It goes on to mention a couple of other points in this regard. I think they're very clear on that. I would welcome the government's comments on those few words of advice from the College of Nurses of Ontario.
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Mr Malkowski: Because of the recent explanation by staff, and we were talking about the new amendment to try and address some of the concerns, we believe the documents are appropriate so the advocates can have access so that they can do their work.
Mrs Sullivan: Could I have a clarification of that from counsel?
Ms Perlis: I'm sorry; I've sort of lost the train. I was chatting with Mr Malkowski while you were quoting from the college document, so I would need you either to hand it to me to read, if you want a clarification on that point specifically, or to read it again. I hesitate to ask you to do that.
Mr Jim Wilson: I'd be happy to do that. In Mr Malkowski's response perhaps could you can point me to -- there's a new government amendment dealing with this section?
Ms Perlis: There is a government amendment to section 25.1, which was stood down and will be replaced with another motion. That deals with documents of a general application, and that has been redrawn by legislative counsel and will be circulated in due course.
Mr Wessenger: It seems that there's a government motion coming dealing with this question of access to information. It would be very helpful to see it before we deal with Ms Sullivan's motion. It is something like working in a vacuum here without seeing what the government's motion is with respect to documents of general information.
Mr Jim Wilson: When will that motion be ready?
Mr Wessenger: I know Mr Morrow said this should be stood down. It seems to me that --
Mr Jim Wilson: We're running out of time.
Mr Wessenger: I realize that, Mr Wilson, but it seems to me --
Mr Jim Wilson: There are two hours left, and we've been through this before. You should have had your motion ready.
Mr Wessenger: It would be helpful, I know, for me as a committee member to have seen the other motion, looking at it with Ms Sullivan's motion.
Mrs Sullivan: This committee adjourned last week on a motion of closure with respect to this bill by the parliamentary assistant. In the course of that time, surely to goodness, the government has had time to get its act together. The amendment to 25.1 was stood down last week. There is no amendment coming so that we can discuss it. The amendment that was stood down bears absolutely no relationship to the amendment I have on the table, which relates to the entire question of quality improvement and peer review in hospitals. When is the government going to get its act together? We've been asked to stand this motion down for the second time because the government doesn't know what the hell it's doing.
Ms Perlis: I wonder if could just step in and say that the motion has been prepared. I have it available for circulation. It was not circulated. We thought we were beginning at section 26 and it related to section 25. We were going to do it when we returned to the stood-down motions. However, it obviously relates to the content of the motions we're dealing with. With your indulgence, I wonder if we could have the motion circulated at this point.
The Chair: We will take time to get copies.
Mr Sterling: I would like to ask a question about the use of information. If a vulnerable person is suing a health care provider, a health care facility etc, can the advocate go in and demand records etc of that health care institution about the vulnerable person? In other words, under our normal civil suits you have certain rights to disclosure and information. Outside of that, can the advocate utilize the powers he or she has here to give a vulnerable person more information than he or she might receive if he or she were not vulnerable?
Ms Perlis: In some situations, that's correct. There are provisions in the act for facilities to withhold from advocates records to which solicitor and client privilege attaches, for example, and records which are the subject of law enforcement proceedings as defined in the Freedom of Information and Protection of Privacy Act.
However, it is possible that a vulnerable person, himself or herself, may not have access to a particular record as of right. The advocate would have access and would then be able to give the record to the vulnerable person which he or she couldn't access on his or her own. This area of the law of course is changing in light of the recent Supreme Court of Canada decisions in the health care field, for example, according patients a virtual right of access to their own medical files. It would mean that those files which previously an individual couldn't access on his or her own, he or she now can, and there are similar changes in the law which we'll see in the new statutes.
Mr Sterling: But to prove, for instance, negligence of an institution, could the commission go on a fishing trip with regard to information about all vulnerable people in that institution in order to build a case for the vulnerable person in suing the institution?
Ms Perlis: No. That's a short answer. In answering that, we need to have a look at section 25, which is the access section for systemic advocacy. The government will be proposing some additional motions to the records section. I may be speaking out of school here, but I just wonder if we could have a short recess to decide if we could go back and recover the area of access to records, perhaps from the beginning, because it's awkward to be dealing with some questions out of order when they refer back to sections 24 and 25. It's a bit difficult in the middle of a day to leap into a section that refers back to previous sections on which government motions will be tabled.
Mrs Sullivan: I understand the concerns counsel has raised. Is it the intention of the government to bring forward complete new amendments in this area for discussion, in the entire area of access to records?
Ms Perlis: That is correct.
Mrs Sullivan: With respect not only to section 26, but to sections 24 and 25?
Ms Perlis: That is correct. So it's difficult, for example, for me to answer Mr Sterling's question, because it would be misleading to quote from the reprinted bill when I know that there are other amendments that will be tabled which we won't reach if we go in sequence starting with 26.
Mrs Sullivan: I understand counsel's concern. What concerns me is that we are in clause-by-clause. This is the final honing. This isn't the policy development process. We will agree to this, but this is just outrageous.
The Chair: A five-minute recess?
Mr Malkowski: Yes, I'd like to ask for a five-minute recess.
The Chair: This committee stands recessed for five minutes.
The committee recessed at 1618.
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The Chair: I'd like to call this meeting back to order.
Mr Malkowski: I would like to refer to legislative counsel to explain something.
Ms Perlis: Sorry; I don't believe that was legislative counsel; I think you meant legal counsel.
The Chair: Correct; legal counsel.
Ms Perlis: At this time the government is prepared to table all the motions it has prepared with respect to sections of the bill, some of which have been stood down and others which have previously been voted on. There may, of course, be additional or replacement motions that arise out of the discussion as we proceed through the motions. The subject matters which the motions deal with are complaints procedure, rights of entry to private dwellings and access to records.
The Chair: Do we have unanimous consent to introduce these amendments and read them into the record? Agreed.
Mr Malkowski moves that section 7 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsections:
"Review procedure
"(6) A review procedure established under clause (1)(k.2) shall include an opportunity for the person making the complaint to be heard by a review committee that is composed of:
"(a) two persons who are members of the commission, selected by the chair of the commission;
"(b) two persons selected by the advisory committee established under clause 10(1)(a), who may be members of that committee or may be members of the public; and
"(c) one person who is appointed by the minister.
"Same
"(7) A review procedure established under clause (1)(k.2) shall provide that a complainant who is not satisfied with the response of the review committee may request a further review of the matter by the chair of the commission."
Mr Malkowski moves that section 24 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsections:
"Idem
"(4.1) If an advocate has reasonable grounds to believe that a vulnerable person is incapable of giving or refusing consent to the advocate's access to a record referred to in subsection (1) and if the advocate is not entitled to access under subsection (2), the advocate is entitled to have access to the record,
"(a) with the consent of the vulnerable person's guardian of the person, guardian of property, attorney under a power of attorney for personal care or attorney under a power of attorney that confers authority in respect of the vulnerable person's property, or of any other person authorized to make decisions on behalf of the vulnerable person; or
"(b) if the vulnerable person does not wish the advocate to seek the consent of any person referred to in (a), with the consent of the commission.
"No access if vulnerable person objects
"(4.2) Despite subsections (2), (3), (4) and (4.1), an advocate shall not have access to a record referred to in subsection (1) if the vulnerable person objects.
"Access to other individuals' personal information
"(4.3) An advocate is not entitled to have access to any information that is personal information, as defined in the Freedom of Information and Protection of Privacy Act, relating to an individual other than the vulnerable person in respect of whom a right under this section is being exercised, unless the individual consents."
Mr Malkowski moves that subsection 25(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "vulnerable persons" in the third line and substituting "persons with a disability or persons sixty-five years of age or older."
Mr Malkowski moves that subsection 25(2) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "vulnerable" in the seventh and eighth lines.
Mr Malkowski moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:
"Access to administrative records
"25.1(1) An advocate is entitled to have access without consent to administrative records which are in the custody or control of a facility, controlled-access residence, or program prescribed by the regulations made under this act.
"Exception, personal information
"(2) Nothing in subsection (1) authorizes an advocate to have access to personal information, as defined in the Freedom of Information and Protection of Privacy Act, which is contained in administrative records.
"Definition
"(3) For the purposes of this section, `administrative records' means documents which relate to the observation, care, treatment or management of individuals or the provision of services to individuals including,
"(a) orders, directives, rules, guidelines, policy or procedural manuals or similar documents;"
"(b) documents that may be made available to the public under the Freedom of Information and Protection of Privacy Act; and
"(c) documents that could be made available to the public if the facility, controlled-access residence or program were subject to the Freedom of Information and Protection of Privacy Act."
At this time, could I ask you to withdraw your old motion on section 25.1?
Mr Malkowski: But we haven't gone through the amendments.
The Chair: I was just wondering if you wanted to withdraw the other motion you had in place.
Mr Malkowski: Yes.
The Chair: Thank you.
Mr Malkowski moves that section 25 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:
"Access to personal information
"(2.1) An advocate is not entitled to have access to any information that is personal information, as defined in the Freedom of Information and Protection of Privacy Act, relating to an individual unless the individual consents."
Mr Malkowski moves that paragraph 2 of section 27 of the bill, as reprinted to show the amendments proposed by the minister, be struck out.
Mr Malkowski moves that subsection 18(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Application
"(1) This section applies with respect to premises other than those premises that an advocate is entitled to enter under section 17.
"Entry without a warrant
"(1.1) An advocate is entitled to enter premises without a warrant and at any time that is reasonable in the circumstances unless the occupier refuses to allow the advocate to enter.
"Same
"(1.2) Despite subsection (1.1), an advocate is entitled to enter premises without a warrant and at any time that is reasonable in the circumstances if the advocate has reasonable grounds to believe that there would be a substantial risk to the health or safety of a vulnerable person during the time that would be necessary to obtain a warrant under section 19."
Mr Malkowski moves that subsection 19(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by renumbering clause (a) as (a.2) and adding the following clauses:
"(a) a vulnerable person in the premises wants the services of an advocate;
"(a.1) there is a risk of serious harm to the health or safety of a vulnerable person in the premises."
Mr Malkowski moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:
"Delegation of powers etc.
"8.1(1) The commission may delegate in writing any of its functions, powers or duties under the act to the chair or to any member or group of members and may impose such conditions and restrictions as it considers appropriate.
"Subdelegation by chair
"(2) The chair may delegate in writing to any person employed by the commission any function, power or duty of the commission delegated to the chair and may impose such conditions and restrictions as he or she considers appropriate.
"Restriction
"(3) Despite subsection (2), the chair shall not delegate a function, power or duty of the commission under subsection 25(1) or (2), clause 30(5.1)(d) or 30(5.2)(d) or subsection 31(3) or (4)."
Possibly now I can get some direction from the committee where we'll proceed from here.
1730
Mrs Sullivan: Mr Chairman, the amendments that have been put forward by the parliamentary assistant are substantial. At cursory glance they meet some of the demands that we were looking for. However, there are other very major concerns that are raised. We want to take these with us overnight and come back to them in the morning with unanimous consent.
I will tell you right now that I'm very concerned with subsection 25(1) and the change in wording from "vulnerable persons" to "persons with a disability or persons 65 years of age or over." The "persons with a disability" is not excluded by age; the "65 years of age or over" is not limited to the vulnerable. I want to review these issues overnight and come forward tomorrow morning back to Bill 74. I understand it would take unanimous consent in order to do that. I hope we have that.
In my time in this House I have been in committee for bills from Labour, women's issues, Environment, Health and several other ministries, and I have never seen such a botched-up process. This bill should be withdrawn. It's inadequate. The constant rewrites and constant confusion about what in fact the policy is, let alone how that policy is going to be interpreted through legislative means, is ridiculous. As legislators, it's impossible to deal with the constant changing of minds, variation of words and issues and changing of definitions. The approach is nonsensical.
People who are professionals, whether in the advocacy area or in the ministries themselves, are shocked at the display of incompetence we're seeing from the government in this area. This is absolutely ludicrous and I really believe, very sincerely, that this bill should be withdrawn. If the minister has any sense she would do that today.
The Chair: Do we have unanimous consent to go to Bill 74 tomorrow morning, with the understanding that we have to go to Bill 110 tomorrow also?
Mr Malkowski: Excuse me. There is something I'd like to say, Mr Chair. I missed what you just said. Could you go back and repeat it, please?
The Chair: I said, do we have unanimous consent to go to Bill 74 tomorrow morning, with the understanding that some time tomorrow we have to deal with Bill 110?
Mr Malkowski: First I think we should get Bill 110 out of the way, then we can go back to Bill 74.
The Chair: Are you saying we don't have unanimous consent?
Mrs Sullivan: The parliamentary assistant has been uncooperative all the way along in these issues. There is absolutely no question that when we were willing to debate, the parliamentary assistant invoked closure. We do not believe we can go to Bill 110, which is a compendium bill that involves and relates back to all of the bills we're discussing, until we conclude discussion on Bill 74. What the parliamentary assistant is telling us is that he doesn't want to deal with this at all. If that's his view, why should the opposition be doing his work for him?
Mr Morrow: Mrs Sullivan, would you be looking at going back to Bill 74 for just the morning tomorrow and then to Bill 110 in the afternoon?
Mrs Sullivan: It's very clear from the rules that have been put down for the committee that Bill 110 must be considered before the end of the day tomorrow. We will clearly have to go back to Bill 110. We cannot go back to Bill 110 until we've dealt with Bill 74. I've never seen such incompetence.
Mr Malkowski: From your concerns, I accept your motion to go to Bill 74 first and then to Bill 110.
Mr Jim Wilson: All I can say, Mr Chairman, is thank God. Let's get going.
The Chair: Do we have unanimous consent to go to Bill 74?
Ms Zanana L. Akande (St Andrew-St Patrick): Would you please clarify. Are we going to Bill 110 in the afternoon? Is it Bill 74 in the morning and Bill 110 in the afternoon?
The Chair: At some time tomorrow we have to do Bill 110. Do we have unanimous consent to go to Bill 74 tomorrow morning and then Bill 110 later on in the day? Agreed.
This committee stands adjourned until 10 am tomorrow morning.
The committee adjourned at 1739.