STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
INFORMATION AND PRIVACY COMMISSIONER
PROVINCIAL FEDERATION OF ONTARIO FIRE FIGHTERS
CONTENTS
Tuesday 26 October 1993
Health Protection and Promotion Amendment Act, 1993, Bill 89, Mr Tilson / Loi de 1993 modifiant la loi sur la protection et la promotion de la santé, projet de loi 89, M. Tilson
Information and Privacy Commissioner
Tom Wright, commissioner
Provincial Federation of Ontario Fire Fighters
Andrew Kostiuk, chairman, health and safety committee
Bernard Cassidy, member, health and safety committee
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Marchese, Rosario (Fort York ND)
*Vice-Chair / Vice-Président: Harrington, Margaret H. (Niagara Falls ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
*Curling, Alvin (Scarborough North/-Nord L)
Duignan, Noel (Halton North/-Nord ND)
*Harnick, Charles (Willowdale PC)
*Malkowski, Gary (York East/-Est ND)
Mills, Gordon (Durham East/-Est ND)
*Murphy, Tim (St George-St David L)
*Tilson, David (Dufferin-Peel PC)
*Winninger, David (London South/-Sud ND)
*In attendance / présents
Substitutions present/ Membres remplaçants présents:
O'Connor, Larry (Durham-York ND) for Ms Akande
Also taking part / Autres participants et participantes:
Ministry of Health:
Dr Richard Schabas, chief medical officer of health, Ontario
Dennis Brown, project manager, emergency health program
Clerk / Greffière: Bryce, Donna
Staff / Personnel: McNaught, Andrew, research officer, Legislative Research Service
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
TUESDAY 26 OCTOBER 1993
The committee met at 1543 in room 228.
HEALTH PROTECTION AND PROMOTION AMENDMENT ACT, 1992 / LOI DE 1992 MODIFIANT LA LOI SUR LA PROTECTION ET LA PROMOTION DE LA SANTÉ
Consideration of Bill 89, An Act to amend the Health Protection and Promotion act / Projet de loi 89, Loi modifiant la Loi sur la protection et la promotion de la santé.
The Chair (Mr Rosario Marchese): I'd like to call the meeting to order. We're dealing today with Bill 89, An Act to amend the Health Protection and Promotion Act, and we are beginning the public hearings on this matter today. The first item of business is the report of the subcommittee. In order to save time, we've canvassed the members of this committee, and technically we have approved that subcommittee report. Given that, we'll move right to number 2, the opening statement by Mr Tilson on this matter.
Mr David Tilson (Dufferin-Peel): Mr Chairman, I understand that originally we were going to have the Ministry of Health start at 3:30, and I will try to be brief so we can hear as many of its comments as possible.
I can honestly say Bill 89 is not my idea. It is an idea that stemmed from a meeting which I believe all members of this House had with various firefighters' associations around this province concerning the protection of emergency care workers, particularly firefighters who have been exposed to communicable diseases. Firefighters in particular, and there may have been other emergency care worker groups, have been trying to work with the ministry for a number of years on this topic. I was given the impression that they weren't having much result, so I introduced this bill and it passed second reading.
The purpose of this bill, as all of you know, is to protect emergency care workers and good Samaritans who may have been exposed to communicable diseases. This bill would allow the medical officer of health to answer requests from emergency workers on whether patients are carriers of deadly communicable diseases.
As in all bills, there are pros and cons. The supporters of Bill 89 believe that emergency care workers and I believe the good Samaritan, the innocent passerby of an accident, will be allowed to find out if they have been exposed to communicable diseases so they may take precautions and protect their family and friends from infection. Opponents of the bill, I suspect, will say that Bill 89 could be used to invade a person's privacy by allowing the medical officer of health to release personal health information. I suspect that when all is said and done, those are the two issues this committee will look at. I'll be the first to admit it is not a perfect bill, and I will look forward to Ministry of Health officials perhaps suggesting amendments as to how it can be improved.
I have met, along with a number of other care givers, with members of the Ministry of Health I think back in the spring -- I lose track of time -- to discuss this topic, and I was advised that from the Ministry of Health's point of view this bill was inappropriate, that something called mandatory guidelines could be prepared which would protect the emergency care workers.
I do have trouble with that. I don't know what its status is. I understand the ministry was going to be working with a working group committee for these mandatory guidelines. The first reaction I have to that is that mandatory guidelines which could be made could be withdrawn. Essentially, they could be regulations; if they're that good, perhaps they could be regulations to this bill. But that was my big fear, the uncertainty of it.
I have been told by at least one medical officer of health that individuals already have the right. Again, it's discretionary on the medical officer of health. Further, ambulance records do not record the names of the first responding police or fire officers or indeed the good Samaritan, and there may be no way for the hospital communicable disease control nurse to know that the care giver, the care provider or the good Samaritan individual has been exposed.
I look forward to hearing from the Ministry of Health officials on this, but my problem with that is that there will be very little chance that the hospital, when notifying the medical officer of health of a communicable disease, will report that to either a fire or police department or indeed a good Samaritan who may simply be a passerby. They simply won't know that a private individual or a firefighter or a police officer or other care giver may have been exposed. I have difficulty with that, but I look forward to hearing the ministry's presentation on that.
I will close with an anecdote. Several years ago, I was on a vacation in Bermuda, and I was on a bus trip where I observed a senior citizen on a moped. He became involved in an accident and lost control of his moped. The moped and he fell to the sidewalk, and he was covered with blood and sustained reasonably serious injuries. An innocent passerby, a lady who had on a white blouse and white slacks, came to his aid, hopefully to make him more comfortable or try and stop the bleeding until the care giver arrived -- who arrived fairly quickly, I might add; the ambulance did arrive fairly quickly. In the interim, this innocent person, this passerby, who I will call a good Samaritan, became literally covered with blood. Her clothes, her hands, her skin were covered with this individual's blood. I watched her and she got into her car and simply drove away. I have no idea whether a report was made, whether her name was given. Maybe it was; maybe it wasn't.
It's for these reasons that I have supported particularly the firefighters in this proposal and any other care giver, and I also support good Samaritans assisting people who will know that if exposed to any form of communicable disease, they will not become unknowingly a carrier of a deadly disease.
Those are my opening remarks on the rationale for why this bill was introduced.
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The Chair: Thank you, Mr Tilson. We have two people from the Ministry of Health, Dr Richard Schabas, chief medical officer of health of Ontario, and Mr Dennis Brown, program manager, emergency health program, emergency health services branch. Welcome. We have half an hour for the entire presentation. Leave as much time as you can, please, for questions from the members.
Dr Richard Schabas: I'm Richard Schabas, the chief medical officer of health for the province and the director of the public health branch, and I'm very pleased to be given the opportunity to speak to this committee about Bill 89.
I think it's important to recognize that public health has a very long-standing role in this province in the control of communicable diseases, particularly in preventing the spread of these diseases in the community. As part of that, public health has powers related to the reporting of these diseases -- reporting of what in other contexts would be confidential medical information to medical officers of health -- and also the authority under legislation to issue orders for the control of these communicable diseases. These are quite extraordinary powers, which, as I say, have been in place in this province in one form or another for more than 100 years, first under the old Public Health Act and more recently under the Health Protection and Promotion Act.
But within the context of these powers, which, as I said, go beyond the usual constraints of medical confidentiality, it's always been recognized that these powers had to be justified by public health necessity, that there had to be a balance between the intrusiveness of the public health authority and the problem with which it was meant to deal. Public health legislation, public health practice, is a long-standing tension between pressures on one hand to extend the powers because of the perception that communicable diseases can be dealt with more effectively and on the other hand the pressures to make sure there are not inappropriate intrusions into individual privacy and into individual rights. The powers must always be invoked only when there is a public health necessity to do so, and in those circumstances they must always be invoked in the least intrusive way possible to achieve reasonable public health ends.
I don't think there's any question that Bill 89 and its provisions are potentially intrusive into personal confidentiality, so I think the first question the committee should address is, what is the problem that Bill 89 is actually addressing? What really is the risk of acquiring communicable diseases in an occupational setting for emergency care workers?
There's no doubt in anyone's mind here, I'm sure, that emergency workers provide an essential service and the nature of the work sometimes involves hazardous situations. There's a great wealth of sympathy for people who are put in this situation. I think we all want to do whatever we reasonably can to protect them from any additional hazards.
But I think we have to recognize that the risk of acquiring communicable diseases in that setting is at most a hypothetical risk. For example, I know of no reported cases in Ontario, in fact I know of no reported cases in Canada, of the occupational acquisition of a communicable disease by an emergency health care worker. That doesn't eliminate the hypothetical possibility, but I think we have to realize that in the general context of their employment, the risks involved here are at most extremely small. If we compare them, for example, with hospital workers, hospital workers work in a setting where there is much more regular contact with communicable diseases and in situations that are consistently more hazardous for the transmission of communicable diseases. Yet if we look at something like HIV infection, which is one of the key concerns that I think is fuelling the concerns of the emergency workers, again, there's not a single reported case of occupationally acquired HIV infection in any health care worker in any setting in Canada.
The real issue, I think, in terms of protecting emergency health care workers lies with what we call universal precautions. The real issue is to prevent the exposure, and there are some important things that emergency workers can do and for the most part are doing to reduce and eliminate their hypothetical risk. These involve things like the use of barrier precautions, like gloves, and in certain situations, masks. It involves the avoidance of sharps injuries. The transmission of HIV infection and hepatitis B, which are two of the diseases I think are fuelling the concern here, is really only an issue with sharps injuries, usually needle-stick injuries, and the use of hepatitis B vaccine, which effectively eliminates the concern about hepatitis B in people who are perceived to be at risk.
Putting the real risk of communicable disease in this context in its proper perspective, I think at the same time we have to realize that there is a continuing perception of risk. I think what we're really dealing with here with Bill 89 and the mandatory guidelines, which I'll address in a couple of minutes, is an issue of perception of risk and how we can best deal with that.
There are some serious problems with Bill 89. First of all, Bill 89 is too broad in the sense that it deals with all reportable and communicable diseases rather than the very small handful where there is even a hypothetical risk of transmission. I think in the Canadian setting and the Ontario setting, the only diseases that are regularly reported where there is even a hypothetical risk in these situations are tuberculosis, meningococcal disease, hepatitis B and HIV infection.
Second of all, there is an infringement on confidentiality which I believe is inappropriate and unjustifiable in the context of the problem it is addressing. Specifically, Bill 89 requires a linkage of a patient's name and that release of information about that patient's disease.
One of the things that's axiomatic in public health case and contact work is that we always protect confidential medical information. We will never link publicly, with someone outside of the public health system, an individual's name and the disease with which they are infected.
Bill 89, in contrast, specifically requires the release of exactly that information. Although the bill tries to address the issue by saying that confidentiality will be respected, in fact since what will trigger the emergency worker's request will be a knowledge of the name of the individual whom they feel they were exposed to, ultimately, the release of that specific information is, as I say, an unacceptable breach in individual confidentiality.
The second problem with confidentiality is that the release of information is based on something called exposure rather than risk of infection. It's extremely hard to define exposure. Medical officers of health are much more comfortable in assessing what the risk of infection is, and indeed our legislation is based around the concept of reasonable and probable grounds of risk of infection.
The third problem with the release of information called for by the act is that it doesn't lead to effective disease control. In other words, what should be forthcoming from a medical officer of health in these circumstances is useful advice and direction to the emergency worker as to how they should proceed following a possible exposure leading to a risk of infection, rather than simply the name of the disease to which they might have been exposed.
An additional problem with Bill 89 is that it constitutes an administrative nightmare for hospitals. The requirement that they collect information under the bill of all persons who have provided emergency care is something that is not presently carried on by hospitals, and I think you will hear in the course of your hearings from hospitals about the problems that will pose.
I do, however, have an alternative to propose to this committee, and Mr Tilson has already alluded to that. Following the introduction of this bill, I met with the Public Safety Services Liaison Committee, which is a committee with representation from the major groups of emergency care providers, the firefighters, police officers and ambulance attendants, and Mr Tilson was kind enough to join us for that meeting last June. It was agreed with that committee that we would develop what are known as mandatory guidelines under the Health Protection and Promotion Act.
For your information, these are guidelines which the Minister of Health is empowered under section 5 of the Health Protection and Promotion Act to require that boards of health provide specific services. The current document is this multihued document which outlines the 20 current mandatory programs, and boards of health, as I said, are legally required to provide what is encompassed within this.
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The committee met in July. It included representatives from the major groups of emergency service providers, as well as representatives of medical officers of health. We developed draft mandatory guidelines which have been discussed generally within the public health community over the last couple of months and which are going to be discussed at a meeting with medical officers of health tomorrow. I have copies of those draft guidelines, if your committee would like to see them, although again I'd caution you that they still are in draft form.
The guidelines deal with the situation in a rather different way. They are intended of course to deal with these concerns that have been raised by emergency workers, but unlike Bill 89, they are consistent with accepted public health practice. In fact, I think they can best be described as codifying the kind of practice we'd like to see regarding these kinds of concerns in any case.
The guidelines apply only to those specific diseases, the four I mentioned, and a handful of other extremely rare conditions where there is even a hypothetical risk of exposure or infection to emergency health workers. They're administratively streamlined. They avoid the complications of the hospitals having to record the names of all the people who provide emergency services. They make use of a mechanism that's been adopted in some American jurisdictions, which is a designated officer who works for an ambulance service or a fire service who will screen the request to make sure the medical officer of health is not overwhelmed with requests.
The guidelines are respectful of confidentiality. They do not link the patient's name with the disease. They allow the medical officer of health discretion in that the medical officer of health will only investigate and provide advice where there is reasonable evidence of a risk of infection, and the focus of the information that the medical officer of health then produces to the emergency health worker is focused on advice rather than simply on naming a disease.
We will proceed hopefully with developing these guidelines. We'll develop protocols for their proper implementation. Undoubtedly there'll be wrinkles. One of the great advantages of the mandatory guidelines is that this is a new protocol. This is a new way of dealing with these problems. There will be wrinkles. We will have to iron these problems out as we go along and we feel our experience with mandatory guidelines, as we've used with our other communicable disease programs, is a more appropriate way of proceeding.
In summary, I'd like to request that the committee put this problem in its proper perspective, that it recognizes that Bill 89 is cumbersome and I believe inappropriate in some of its provisions, and that the use of mandatory guidelines offers a better way to deal with the concerns of emergency care workers.
The Chair: Thank you, Dr Schabas. Mr Brown, did you want to make any comments?
Mr Dennis Brown: No. I will provide answers if there are any questions relating to emergency services workers.
The Chair: Mr Tilson, we can begin with you, if you like, with questions.
Mr Tilson: How much time?
The Chair: Five or six minutes, more or less.
Mr Tilson: I appreciate some of your comments about whether the bill is too broad, the definition of "exposure," the education program. I must confess, I'm simply responding to what I honestly believe is a problem. As you found out in the committee, I don't profess to be knowledgeable on this topic. I would hope that if the committee agreed in principle with this bill, you would assist us perhaps in providing amendments to the bill that might deal with some of these issues.
Having said that, I would like you to respond to the criticism I have referred to -- albeit it's not my criticism but one that was provided by one of the firefighters' groups -- with respect to your topic of mandatory guidelines. Let's just take the issue of the good Samaritan or the off-duty police officer or the off-duty nurse. Those people won't apply to the mandatory guidelines.
Dr Schabas: I think one of the issues to deal with is that there's not going to be any piece of legislation or any mandatory guideline which is going to deal with absolutely every scenario. What we're trying to impress on boards of health with the mandatory guidelines is what we consider to be good public health practice in dealing with these concerns. I think the message to them -- and whether it can be incorporated directly in the mandatory guidelines or not I don't know; perhaps it can -- is that the same kind of attention they would give to an emergency health worker should be afforded to a good Samaritan: Take a good history, identify whether there is a risk of transmission of infection. If there is, then you investigate it to the best of your ability and offer them the advice that's going to help them.
Mr Tilson: But my problem with what you're saying is -- I'll take the Bermuda anecdote I gave you, the woman who assisted an individual who was severely injured. She won't know about it; in other words, the medical officer of health won't even know she was involved because she may not even be in a report.
My goodness, we're just going through incidents, particularly in Mississauga, of meningitis. I know you could give me a lecture as to serious medical diseases, and I don't want to get into that, whether it's meningitis or whether it's -- what are the top four? Tuberculosis, meningitis, hepatitis and human immunodeficiency virus. Those seem to be the top four, and you may be quite right and maybe we should narrow it. We don't want the common cold, for example.
That woman will not be notified by the guidelines that you're speaking of. There's no way she will be.
Dr Schabas: I think the practicality of it is and the way the guidelines will work with regard to concern about blood-borne diseases is that they have to be triggered by a request by the emergency health care worker. If one thinks of all the instances that go on in Ontario every day where there is skin contact with blood in a community setting, to suggest that it's the job of public health to somehow keep track of those and trace those down -- the point is that, on the one hand, that suggestion, I think, in practical terms is absurd. But fortunately, on the other hand, all we know about the risk of infectious diseases is that the risk is so trivial that it's not something that I think would generate the kind of massive public health effort that would be required to fulfil it.
Mr Tilson: I appreciate what you're saying, the impossibility of all of that, and I also appreciate the administrative problem, and surely there can be ways of improving that. I have referred to the automobile accidents, but there could be simply a communicable disease that may be spread to health care workers through accidental needle sticks.
Dr Schabas: There are two. There are hepatitis B and HIV, although as I pointed out, the actual risk of transmission is fortunately extraordinarily small.
Mr Tilson: That may be, and of course hopefully we won't wait until it happens, and that's precisely why the firefighters brought that to my attention. They generally see that this is a possibility. I don't want to start taking bets as to what the odds are, but the fact is that it's there.
Even the individual who takes a first-aid course: I have a member of my staff who took a first-aid course and at the end of the course she was told, "Now, if you come across a person who has blood on them, be sure to wear your rubber gloves." These are just average people. Number one, they may not have time to get their rubber gloves on. They may be in a situation where they simply aren't able to do that, or the good Samaritan; I don't carry a pair of good rubber gloves around with me.
I will agree that the bill is geared towards the health care worker, but I'm concerned as well with the person who's driving along the road or the person who comes across a person who has had problems. With respect, I don't believe your mandatory guidelines cover that person. I appreciate all of the -- I'm sorry, I should give you a chance to respond.
Dr Schabas: To be perfectly honest, I think that neither of our approaches really offers very much in the way of protection there. As I said, we're dealing with a risk that is hypothetical and a risk which both of our approaches deal with after the fact. So the actual efficacy in terms of reducing what is at best a hypothetical risk of infection is rather small. We're not really dealing with risk of communicable diseases here; we're dealing with a perception of risk among people who provide key and essential services. That's really, I think, what both of our approaches are in reality addressing.
Mr Dennis Brown: I want to make a point in terms of the good Samaritans. We know from our information that less than 10% of the people who have emergencies in Ontario actually enter the health care system through the emergency services. That's less than 10%. So 90% of the people who are going to potentially have these contagious diseases are going to arrive at the hospital by cab, by private car and by other means and are not going to come through the system we have any control over.
It would require that someone be out there checking at the door of every hospital and asking was any care given or did somebody give care before they arrived, in order to check these people and find out if some good Samaritan care was given. As Dr Schabas has said, it's a very difficult concept to work with in terms of recording all that information.
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The Chair: One last question, Mr Tilson. I realize this is important.
Mr Tilson: It is. I must say I'm concerned about talking about percentages, and we're not talking about prevention. Yes, we are talking about after something happens, whether it be the care giver or the emergency care giver or the good Samaritan. I don't want those people, to talk about precautions, to go home and in turn communicate a disease to the members of their family, and then they have to deal with that.
There are all kinds of other things. The education issue was an excellent one, the whole matter of privacy of rights. Nothing in this bill -- and, I agree, perhaps it should be tightened up -- allows for a person who's carrying a communicable disease to be identified; perhaps the idea of counselling the emergency care providers or the good Samaritan who has obtained this. I think those are all things that could be provided with amendments.
I will only say in closing, and you may wish to comment, that it doesn't protect the innocent bystander or the innocent good Samaritan, with due respect, or the innocent off-duty firefighter or police officer.
Dr Schabas: I think everybody involved in this issue is innocent; I don't think we separate the innocent from the guilty. The point about the good Samaritans is that first of all the provisions of the mandatory guidelines can be applied to good Samaritans. That's part of good public health practice and, as I say, that's something we can look at incorporating into the guidelines, if that's the direction we get.
I think, though, realistically, if we feel this is a risk of the magnitude you feel it is -- but I must say I don't think there is objective information to support that -- we should be putting our efforts into education, because it's only education before the fact that prevents infection or reduces infection or the hypothetical risk of infection among health care workers and emergency care workers. Again, if a need to do this is felt, the place to put our efforts into is real prevention, not into administratively chasing our tail, as I think the provisions of Bill 89 would invite.
Mr Larry O'Connor (Durham-York): I note, by looking at the agenda we have before us, the concerns Mr Tilson has presented in this bill, that we're certainly going to get a good round of discussions from all the different people on some of the concerns you've raised. For example, the privacy commissioner is coming before us a little later on, and the firefighters' federation.
A concern I have is the list of communicable diseases that could be affected by this. Is it possible we could be expanding the list? I take the comment Mr Tilson has made, for example, around the common cold. I would hazard a guess that there's probably more time lost from work by the common cold than any other communicable disease, though I certainly don't have the stats to prove that. If we open this up through this process, we could actually open it up to a much broader process that's going to mean a lot of reporting. Maybe you could share with the committee the list of diseases and the process in education that happens through the public health units. We had a really good example with the scare in Peel region and the mass inoculations that were called for and that type of process. I think what happens is that perception quite often runs a lot of fear into people and we don't really hear about the education process. Maybe you can share with us some of how that works. I think it might help us get some comfort.
Dr Schabas: Sure. I think it's an important question. As I said before, there are processes in place under our legislation which, for example, require physicians to report to medical officers of health patients who have certain infectious diseases that are listed in our act and in the regulations of the act, which on the surface of it is of course a breach in the usual standards of medical confidentiality. But that reporting historically has been permitted -- the legislation has required it -- because there are specific actions that make that necessary. There are things that public health can do with that information which can then serve to protect the public.
We have a list of about 55 diseases now, which run all the way from tuberculosis and HIV infection through enteric diseases like salmonella, measles, syphilis and gonorrhea, a whole list of diseases, but the real criteria for determining whether public health collects that information and then what guides public health action is the ability to use that information to protect the public. One of the key criteria -- which is why, for example, we would never consider applying it to the common cold -- is because of the necessity of providing public protection and our ability to use that information to provide public protection. So our focus is always on prevention.
Of course, one of the most effective strategies, and I would say in the case of occupational diseases far and away the most effective strategy, in controlling the spread of infectious diseases has been through educational strategies. In fact, where public health and the entire health care sector has put its efforts in the last few years has been in the area of universal precautions, which I alluded to. That's something which really does reduce the potential for transmission of infectious diseases in these contexts, and that's the kind of place we should really be putting our efforts if we want to protect emergency workers or if in fact we have concerns about good Samaritans.
Mr O'Connor: You talked about the development of some mandatory guidelines as an alternative. I guess Mr Tilson may have an advantage over some of the members of the committee because we haven't been involved in the process like he has. I applaud him for working with the ministry and people from the firefighters' association, because a number of us have been approached on this, so I applaud you for bringing it forward.
We're at a loss because we haven't seen the draft guidelines. Perhaps you could share them and give us a feel for who might be involved in trying to draft those guidelines. Mr Tilson has talked about some of the people he has been involved with and was approached by to come forward with legislation, and maybe you can give us an idea of who's on there so we can see what kind of representation is being involved in the guidelines.
Dr Schabas: This was an ad hoc group which came out of the public safety services liaison committee. Included we have two representatives from the firefighters who are going to be on your agenda to address this committee later in your deliberations, as well as a representative from the police and a representative from the ambulance attendants.
It was a very constructive process. I think all the parties involved -- the ministry, the emergency workers, the medical officers of health, the Ontario Hospital Association -- who all sat around the table last July were quite pleased by how well we were able to arrive at a common ground. I hope very much that's the message you're going to hear from Peter McGough and Andy Kostiuk, who are going to be speaking to you later and who were part of that process.
I think there was an understanding on all parties that none of us got what we considered to be the ideal from that. I don't think the emergency workers necessarily got the guidelines to mirror exactly what they wanted, and I think the same was true for the medical officers of health and for the ministry. But I think we were all quite pleased by the way we were able to arrive at a compromise which satisfied everyone, that we felt was workable, although I think its workability may have to be fine-tuned a little bit as the guidelines are implemented. But I hope you'll hear from them how constructive and useful that process was. Mr Chairman, I do have copies of that.
The Chair: That's fine. If you have copies, we can distribute them now, or one and we'll distribute to the other members later. Mr Murphy.
Mr Tim Murphy (St George-St David): Thank you very much for coming. I want to try and focus a bit on what we're talking about. I think there's a clear distinction between what you referred to as the before and after, I guess -- the exposure moment, if we can put it that way.
Clearly, this doesn't deal with before, and I think what you've talked about in terms of education, in terms of prevention and preventive measures is entirely appropriate. Frankly, we probably all agree on education, on the need for those things to happen, so we'll put that, in a sense, aside.
We're dealing really with after. That breaks down into two categories to some degree, and you referred to this as well: the real versus perceived risk. I have no pretence to expertise on what the real risk is. Really, what we're talking about is a perception of risk with some level of real risk, whatever. It's probably small no matter how we slice it, and maybe it goes down to minute. I don't know. That's your expertise.
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You talked in that context about focusing public resources and you're saying they should be allocated to the before and the prevention rather than having you administratively chase your tail. Just coming fresher to this, I guess, since I'm a newer member and wasn't around when this passed second reading, it strikes me that the before, except in the most general sense, doesn't deal with the good Samaritan case. That's really an after issue.
I can understand the concern about requiring hospitals to collect a degree of information. Is there a federal infectious disease notification law that you're aware of in the US?
Dr Schabas: I don't know about the American legislation.
Mr Murphy: I should have said that up front, because my understanding is that there is, which talks a bit about what you talked about, the designated officer concept as a way of dealing with emergency health care, so that you have in essence a funnel first. Really, the focus is placed on the emergency care worker to make the request, and I suspect, and I'll probably get a chance, that some of this is covered in your guidelines.
I was looking at the bill and listening to what you said and trying to focus on what you had the biggest objections to. Obviously, one of them is the requirement that hospitals record other care providers as they come, and I can understand that. I don't know if you have it in front of you. I'm looking at subsection 27.1(2).
What that outlines is a statutory right, I guess, to provide a request for information as to exposure. Ultimately what we're debating, this strikes me as the core of it, whether you put this in legislation or not, and the rest of it is protective measures to guard confidentiality and provide administrative structure. This is the core right, especially for the good Samaritan context. I'm wondering what problems just this clause gives you.
Dr Schabas: Focusing just on that one clause?
Mr Murphy: Yes, and the concept it entails.
Dr Schabas: The concept it entails is that when an emergency health worker is concerned that in the course of his work he may have been exposed --
Mr Murphy: I'm going to have to stop you there, because it's a little more broadly worded than that.
Dr Schabas: Fair enough. When a person who provides emergency care, in the course of doing that, is concerned he may have been exposed to a communicable disease, and therefore there should be a process which should allow him to initiate an investigation which may or may not lead to him getting some specific advice about that, no, I have no problem with that concept.
In fact, that's embodied in the mandatory guidelines, with one caveat. The mandatory guidelines go a step further in that, recognizing that the vast majority of these requests are going to come from people who are emergency care workers, they provide the administrative mechanism through the designated officer of sheltering the medical officer of health from superfluous requests.
Mr Murphy: The designated officer concept is reflected in the US, at least from the information I have.
Dr Schabas: We borrowed it from them.
Mr Murphy: That seems a sensible concept, frankly.
I guess the next question is, given that caveat and your agreement with the concept, do you have an objection to that being in a guideline or enshrined in legislation? Is there a distinction or a difference, or is it a difference without a distinction?
Dr Schabas: The question about whether this should be put into legislation or not ultimately is one for the Legislature to decide.
Mr Murphy: But I think you're the expert.
Dr Schabas: The concern I expressed in my opening remarks, though, is that we are to some extent feeling our way through this. I'm always a little nervous about enshrining something in legislation, because legislation is difficult to change and often problematic in its interpretation. What we're aiming towards here is good public health practice.
I guess like most physicians, I'm always more comfortable with adopting a more flexible approach to a new procedure and seeing how it works out. So I'm more attracted to the notion of mandatory guidelines simply because they're inherently more flexible. We're entering into this in good faith. We've entered into it in good faith with the emergency workers to develop a protocol that reasonably addresses their concerns. Exactly what mechanisms are going to work effectively I can't tell exactly now, and I'd be very unhappy if we were bound into a legislative mechanism that we later found there were problems with.
The Chair: Mr Murphy, we ran out of time. Dr Schabas and Mr Brown, thank you for coming today and thank you for the information you provided to the members of this committee.
INFORMATION AND PRIVACY COMMISSIONER
The Chair: I'd like to call on Mr Tom Wright, the Information and Privacy Commissioner. Tempus fugit quickly. We have half an hour, Mr Wright. You can see that it leaves very little time in terms of what you want to communicate in questions and answers, so do your best to leave as much time as you can for questions.
Mr Tom Wright: Certainly. I will try to keep my remarks brief and to the point. I am pleased to have the opportunity to appear before the committee to address an issue which is of concern to the Office of the Information and Privacy Commissioner, obviously members of the committee and others.
In his opening remarks, Mr Tilson very accurately described the two competing interests that the committee is considering. My role this afternoon, as I see it, is to share with you what we see as the privacy implications of Bill 89.
Before making my remarks, I would very briefly like to take a moment and place them in the context of Ontario's access and privacy legislation and the role of the Information and Privacy Commissioner.
In Ontario, there are two acts: There's a provincial act, which applies to provincial government organizations; there's also a municipal act, which applies to local governments across the province, municipalities, school boards and other local agencies.
As Information and Privacy Commissioner, I am an officer of the assembly, and the agency is an agency of the Legislative Assembly. I report to the House through the Speaker.
The Information and Privacy Commissioner has several roles: one deals with appeals involving requests for information under the legislation; the second deals with ensuring that government bodies comply with the privacy requirements of the act, the rules and regulations surrounding the collection, use and disclosure of personal information; finally, we have a responsibility for ensuring that members of the public understand their rights under the acts as well as how to go about exercising them.
We have a role as well which perhaps in a sense is what I'm doing here this afternoon, and that is to comment on proposed initiatives which have access and/or privacy implications. In this role, we see ourselves clearly as advocates for the concept of access and privacy.
In terms of the issue of the potential privacy implications of Bill 89, I'd like to share with you some of the issues I feel should be addressed during consideration of the bill. It's not my intention to make comments about medical conditions or health care in Ontario. Certainly, the previous speaker, Dr Schabas, I think covered that area in considerable detail.
In our view, Bill 89 has obvious potential privacy implications for people with reportable diseases or those who are infected with an agent of a communicable disease. If the bill is passed, medical officers of health would be required to disclose, upon request, sensitive health information about individuals to emergency care providers.
As I indicated at the outset, it's your task as legislators to balance the competing interests involved in this bill and to make a decision which you feel best satisfies the public interest. However, I would like to share with you some of my thoughts on the nature of what those interests are.
In the case of many communicable diseases, there is considerable social stigma attached to the condition. People who have been diagnosed have considerable interest in keeping this sensitive personal information confidential. For example, the knowledge within a community that someone is infected with HIV or is suffering from AIDS can cause enormous emotional stress to that person, who is already trying to deal with the physical, financial and social implications of the situation.
Although the bill envisions that individuals will not be identified, the reality is somewhat different. In the great majority of cases, the emergency care provider will in fact know the identity of the person who has received assistance, and once someone has been identified as a carrier of a reportable disease or infected with an agent of a communicable disease, the potential exists for this information to be widely known in the community where he or she lives.
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Balanced against the individual's right to privacy is the emergency care provider's right to know whether he or she has been exposed to a communicable disease. However, in our view, the practical use of obtaining this information needs to be examined. To raise but one question, would an emergency care provider act any differently in a situation where such information was known?
Should the bill proceed, we believe there has been a significant omission that should be addressed. The bill does not require an emergency care provider to maintain the confidentiality of information provided under -- referring to a section of the bill -- subsection 27.1(4), which basically provides that,
"The medical officer of health shall advise the person in writing, as soon as possible, as to whether or not the person was exposed to a reportable disease or to an agent of a communicable disease and if the person was exposed, the name of the disease or agent."
As I have indicated, as it is likely that the emergency care provider will know the identity of the individual involved in the great majority of cases, we believe this omission should be rectified in the event the committee decides to recommend passage of Bill 89. However, I would like to clearly state that from the privacy perspective, confidentiality can best be maintained if the disclosure of sensitive health information proposed in Bill 89 does not take place.
I also have had an opportunity to review the draft of the mandatory program guidelines referred to by Dr Schabas. My review certainly has not been in any detail, but they do reflect, in my opinion, a better balance as it relates to the right of access and the protection and confidentiality of health information. I also share the view that they perhaps provide more flexibility in terms of dealing with situations that legislation simply cannot be designed to address up front. In many ways, that flexibility may better serve the interests of those who are in fact providing emergency care services.
In closing, and as you say, Mr Chair, to allow time for questions with the relatively short time this afternoon, I would like to leave you with one request. In your deliberations, I would ask members to give careful consideration to the preservation of the privacy rights of individuals.
The Chair: Thank you, Mr Wright. We'll begin with the government members, seven minutes per caucus.
Mr O'Connor: I appreciate that you elaborated, Mr Wright, on the privacy aspect of it. I didn't really catch whether Mr Schabas had mentioned you had seen a copy of the document or not, so I appreciate that you have seen it and reviewed it.
A concern I might have is that I come from an area that is largely rural and a lot of my people, for example the firefighters, are volunteer. So I guess if a situation arose where they were called to an emergency situation, they would know where they're picking up the individual. If the individual was found to have a disease that fell into this category, then in small-town Ontario, everyone would know. I think we have to be careful about the privacy of individuals, and in this type of situation, I think it would be quite worrisome that there would be inappropriate disclosure of this type of information that wouldn't be good for the individual. Perhaps you can comment a little further on that element. It's one that does bother me somewhat.
Mr Wright: I can certainly identify your comments as it relates to so-called small-town Ontario. I spent most of my professional life in the town of Kincardine, where I learned very quickly that everyone basically knows everyone else's business.
Certainly when you're talking about the confidentiality of information, I think in this case we have to look beyond what would be the anonymous situation perhaps in a city like Toronto or Toronto area where you're talking of three million people and in fact play this out across the province. In fact, when you look across the province, the majority of communities are small communities and what happens is exactly what you've described.
I think there is certainly no issue around -- and the example that I used in my remarks was HIV, the stigma and the effect that the knowledge of that kind of information has on an individual and how they operate and how they act within that community. I think your point is well made and I think it's very important that consideration be given to the fact that this legislation will indeed apply right across the province of Ontario, including most of the small communities that we're aware of.
Mr O'Connor: The communities that I represent are very caring communities. For example, if an emergency vehicle were to show up on my street, everyone in my village would know that the ambulance was there or the firefighters were called for whatever the reason might be. Everyone would know it; it's a matter of fact; it's pretty obvious.
Around some of the stigma that you talked about around the AIDS community, I think that we are going to hear from AIDS Action Now, so we're going to hear that. I guess then we have to get back to Mr Tilson's concern about the individuals providing the medical care and their safety and that element. The reason Mr Tilson's brought this forward is concern for the individuals providing the care. Do you think those guidelines reflect the protection for the individual's privacy that of course you're concerned about as the privacy commissioner? I guess that's what I'd like to ask.
Mr Wright: I must contrast it perhaps with the process that is set out in Bill 89. I think, yes, the privacy interests of the individual involved are better balanced, and that's what it is. I certainly would not come before this committee and in any way dismiss the notion that there is a very real interest around the emergency care provider and concerns for that person's health.
However, what we constantly strive for, certainly in the position I hold, is to find what the balance is that effectively achieves what it is we're intending to achieve. Certainly, I have to defer to the medical experts in areas in terms of whether or not the appropriate protections are achieved as it relates to health-related issues. But certainly, as far as the guidelines themselves are concerned and the privacy issues, yes, I do feel that the balance in there is a good one.
Mr Murphy: I appreciate your coming. The confidentiality aspect of this is an issue of real concern for me too. I represent a riding with a large population of people who are living with HIV or with AIDS, or who have family members, partners, friends who have died because of AIDS. I very well understand from that the social stigma issue, which is unfortunate but real.
You've reviewed the guidelines. It has a protection for confidentiality which I agree is not in the bill and is a major lapse, from my perspective, in terms of a technical requirement of this, that if passed would need to be in there. What we're really debating ultimately is that we all seem to be agreeing that there needs to be a process. It's a question of where that process is, whether it's a guideline or enshrined in some legislative format. Do you think a guideline protection of confidentiality is sufficient, or would you prefer to see a legislated protection of confidentiality in this process? It may be provided elsewhere; I don't know.
Mr Wright: My difficulty is that my first reading of the guidelines themselves was yesterday, so I really have not had a chance to fully consider the impact. What I am offering you this afternoon is an initial impression without the kind of detail that perhaps I would benefit from in terms of a further reading. As far as the confidentiality issues are concerned, my understanding is that there are already provisions in place that would adequately protect confidentiality and that it would not be necessary, absent Bill 89, for something new to be introduced, simply because there were some form of guidelines in place. I think the protections are already there as far as confidentiality is concerned.
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Mr Murphy: Are there sanctions somewhere in legislation for inappropriate use of confidential medical information? I know doctors have certain restrictions, but is there some limit or sanction on others who come to have access to that information through approved processes?
Mr Wright: I honestly am not familiar with that and I would be hesitant to answer in the possibility of misleading you in terms of how I would respond.
Mr Murphy: I see Dr Schabas in the background. Maybe he knows.
Mr Wright: I was going to say that I'm sure we have others here who can offer the information.
Dr Schabas: The simple answer to your question is no. Medical information in the hands of someone under the Health Disciplines Act, physicians for example, is confidential and the only exception to that is when there are legal requirements like those under the Health Protection and Promotion Act.
Public health professionals work under the Health Disciplines Act, so they're subject to those confidentiality constraints, and then there is a section of the Health Protection and Promotion Act which has specific confidentiality restrictions on public health for reports of infectious diseases.
The issue isn't, are there controls to keep the information confidential when it is within public health, because those are in place. The concern with Bill 89 is that it takes that information outside of the public health sector and puts it in the hands of emergency workers or good Samaritans, who are not subject to those constraints.
Mr Wright: I intended to make the comment, and in deference to the Chair's concern over time I eliminated this portion of my remarks, related to what I see is a need for a broad medical access and privacy act of some kind, something we've been encouraging the Ministry of Health to introduce for a number of years. It hasn't happened, and this is another situation we're dealing with today that really does show why we need that kind of legislation. It really would reflect the kinds of concerns that we're talking about today.
Dr Schabas: I was just going to interject too, though, that I think the issue goes beyond legislation. The importance of confidentiality is something that is instilled in physicians and other health care professionals from the first day of their training, so we are very used to dealing with confidential information and extremely sensitive to the need to keep that confidential. With people who don't have that same sort of professional training and the same culture of confidentiality, just passing a law or making an amendment to a bill saying you must keep it confidential in and of itself is not going to be very effective. I think, realistically, exactly the concerns that Mr Wright and Mr O'Connor have expressed are a reality.
Mr Murphy: The reason I raise that question -- and I'm glad you're both here -- is that the mandatory guideline does clearly provide for access to that information; granted, a narrowed form or a cleansed form to some degree, possibly. There is an opportunity through a designated officer to find out if you have been exposed.
Dr Schabas: No. What there is the access to is to send a concern to a medical officer of health, who will then investigate that concern and offer advice as to what you should do. It's very different from the medical officer of health returning and saying, "You have been exposed to HIV infection," for example.
Mr Murphy: We could debate that, but I suspect if a designated officer came back and said, "You should avoid sexual contact with your spouse," we're all going to know what that means.
Dr Schabas: But realistically, the fact of the matter is, to deal with HIV infection, in the vast majority of cases the medical officer of health is not going to be able to know whether the person is HIV-infected.
Mr Murphy: Fine. You should go and get an HIV test, if that's the advice.
Dr Schabas: There will be generic advice, which will involve having an HIV test and watching for the signs of acute HIV infection. No, in fact it's going to be very difficult to tell in most circumstances, from the advice that's given, whether the person to whom you were exposed actually had the disease.
Mr Murphy: That raises one last question --
The Chair: I'm sorry, but I allowed many more minutes. We need to move on.
Mr Murphy: Just one, very quick; it'll be brief. Are you satisfied that this small amount of information does not raise a concern about confidentiality of medical information?
Dr Schabas: I think there are always going to be circumstances, in the proper execution of these guidelines or any public matters, where there is the potential for some infringement on confidentiality. That's a reality of practising good public health. I think it's a question of striking the balance, of doing everything that's practical.
It's like the question of when someone has gonorrhea and they name their spouse as a sexual contact. You've got to tell the spouse because they've got to be treated so they don't suffer the consequences. Yes, sometimes they're going to be able to figure out who their contact was -- that's unavoidable -- but those are cases where it is necessary, where there is a clear public health necessity.
There will be extremely rare circumstances, I think, in these guidelines; for example, when the person to whom they're exposed is a hepatitis B carrier and where it's necessary to recommend to the emergency care provider that they get hyperimmune globulin. Yes, they will then probably know that there was that contact, but there is enough of an overarching public health necessity that I think makes that risk justifiable.
Mr Wright: I was just going to add by way of agreement that, as I mentioned earlier, it is the balance in terms of how the confidentiality is achieved which I think gives the guidelines themselves merit.
Mr Murphy: I'm sorry for taking up so much time.
Mr Tilson: I understand that you and Dr Schabas are concerned about the issue of confidentiality, although I I go back to Mr O'Connor, who talks about the small community. I mean, who are you kidding? I don't know how many of you saw Crocodile Dundee and Crocodile Dundee II, but if you're in a small community, everybody knows everything. If you think you're keeping something confidential, you're dreaming.
Mr O'Connor: Are you talking about crocodiles in my community?
Mr Tilson: I know you thought you were finished, but here you are back at the table again, Dr Schabas. My concern with both of your presentations is that I get back to the good Samaritan. I must confess, your mandatory guideline programs are for exactly what they say they're for: They're for emergency services workers. I know that some of the firefighters, and there may be other people, will wish to comment on this and will look forward to that. It gets back to the firefighter off duty, the police officer off duty, the nurse off duty, or the good Samaritan who doesn't know anything about health care who is assisting someone. It doesn't give them a great deal of confidence in the system, particularly when we've just gone through, as was indicated over here, the meningitis scare. Sure, you can zero in on one particular communicable disease, but the one you're speaking of is what, fourth or third? I don't know what it is in order and I don't really care. The fact is that there are at least four serious communicable diseases.
My concern is that we need the good Samaritan, we need the off-duty firefighter or the off-duty police officer who's driving by and needs to stop somebody's bleeding. Particularly with all the risk of all these terrible diseases going around, what are they going to do? Are they going to just keep on driving? Is that the type of society we're creating with the privacy legislation?
I understand the dilemma. You're here to talk about the protection of privacy of the person who has the communicable disease, but even in the capacity you're in, I submit you have an obligation to look at the other side of the coin.
Mr Wright: I don't disagree at all. As I've indicated before, there are definitely two sides to the coin. The situation you pose, however, is an interesting one in the sense that you are talking about the person who does come on to a situation. In a sense, what you're suggesting is that this person is going to go through a thought process, in advance of doing anything, about whether or not they should do something.
Mr Tilson: I hope not.
Mr Wright: I don't think this bill really addresses the issue of whether or not I should stop; we're talking about what happens after the fact. If the person does encounter a situation like that and does respond in the way we would hope they would, as a good Samaritan, what is it really doing, in terms of whether they have in fact come in contact with someone with a communicable disease, after the fact? They have stopped already.
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Mr Tilson: I understand that. All I'm trying to say is that I hope there are a few good Samaritans left in our society today, and this type of philosophy -- and I'm saying this with the deepest respect to both you and Dr Schabas, because you're doing your jobs, and Dr Schabas, you've raised the other issue of the confidentiality of the practitioner, which gets to another issue, I suppose.
The bill does not identify or request the identification of the individual who has been involved, notwithstanding Mr O'Connor's hypothetical situation. It doesn't do that. In fact, if anybody did identify that, my guess is they'd be charged under the two pieces of legislation you refer to. I'm not familiar with how serious those charges are, but they are protected under those pieces of legislation. You're not allowed to reveal the individual's name.
Mr Wright: I think there are two parts to the question, as I understand it. There's the initial notion that information is disclosed and that because of what the person who would be making the request knows, they would be able to link or put the two pieces of information together.
Mr Tilson: But I dare them to release that information. The law doesn't allow them to do that. They're going to be charged.
Mr Wright: This is where I'm not so sure, and I think this is where we had Dr Schabas join us. If I may refer again to my remarks, this is why I said that if in fact this bill were to move ahead, what would be needed would be something that would give teeth to the very notion you've just described.
Mr Tilson: I would have no problem if there was a proposed amendment, or perhaps as the proposer of the bill I would put that in, because I don't think it's the intent of the bill to put forward the situation you're describing. There's no question about that.
The Chair: Because Dr Schabas is there, he may want to comment on the other matter.
Dr Schabas: We have to look realistically at how this bill would operate. Obviously, when the emergency worker or the designated officer or whoever contacts the medical officer of health to say there was a potential exposure earlier today or yesterday, the medical officer of health is going to have to know the name of the person involved to be able to investigate in any practical way. The emergency worker who's going to trigger the concern is going to know the name, and they are then, according to the provisions of Bill 89, going to get this other key piece of information, namely, what disease that person has.
The purpose of the legislation is not to punish people who breach confidentiality; it's to protect confidentiality. I seriously question -- once you put this information in the hands of people who are not used to maintaining that kind of information and are not trained to do so, there are inevitably going to be breaches of confidentiality.
Mr Tilson: How much time do I have?
The Chair: One last question.
Mr Tilson: With due respect, that is not the intent of the bill. The intent of the bill is to make individuals, whether they be care givers or good Samaritans, aware that they may have come into contact with someone who has a communicable disease. That's the intent of the bill. If you've read it differently, I can tell you that's the intent of the bill.
But my question, as I'm only allowed one question -- perhaps I should be asking this to Mr Wright. Isn't the same dilemma that is being suggested for this bill in the mandatory guidelines? Ultimately, it is. The same information may come out through the mandatory guidelines.
Mr Wright: I've had an opportunity to briefly discuss with Dr Schabas that very question. As a matter of getting you the most accurate information, I would again like to defer to him in terms of providing a response to you. I think he touched on it a little bit earlier, and if you wouldn't mind --
Mr Tilson: He doesn't agree. I'm looking for your answer.
Mr Wright: I happen to agree with him in terms of how he expressed it. So I thought rather than me saying in my words what he said, basically I share the view that he has expressed.
The Chair: Thank you, Mr Wright, for the information that you've provided to this committee. We have one more speaker. The two of you might want to stick around if you have the time.
PROVINCIAL FEDERATION OF ONTARIO FIRE FIGHTERS
The Chair: I'd like to invite Mr Andrew Kostiuk, Provincial Federation of Ontario Fire Fighters, and Mr Bernard Cassidy as well.
Mr Andrew Kostiuk: First I'll get rid of all the paperwork. I've got copies of the brief. Donna said we needed 30; it almost killed us bringing it over.
The Chair: You've seen how the process works. You have half an hour for your presentation. Leave as much time as you can for questions.
Mr Kostiuk: Our brief looks a lot more formidable than it actually is. I'm not going to read it verbatim, obviously. I'm going to walk you through it and stress the points that we feel are important.
First off, I represent the Provincial Federation of Ontario Fire Fighters. It's an organization of paid firefighters some 5,000 strong in the province of Ontario. We represent some 34 locals, and you can see on page 2 the locals that we represent. Some of those locals would be represented in your ridings.
My name is Andy Kostiuk, as you know, and this is Bernie Cassidy. He's with the Toronto local. I'm captain on the city of York fire department so the things that I will talk to you about are actually from experience as a fire line officer responding to medical calls as such.
The Provincial Federation of Ontario Fire Fighters is, in principle, in support of Bill 89. As we go through my presentation, I think you'll see that there have been a couple of offshoots since we've started on Bill 89, and hopefully we'll explain our position clearly on that.
The issue of firefighters seeking some kind of communicable disease reporting system is -- I've been working on it personally since 1990. You can see on page 3 that there have been resolutions passed at our conventions since 1990 in each consecutive year up to the present, 1993, asking the health and safety committee to address this issue because firefighters are concerned that there should be a reportable system to notify firefighters when they're exposed to a communicable disease.
On page 4 and for several pages after, there is a list of communicable diseases that we're exposed to in the course of our employment, in the course of responding to medical calls. I won't bore you with the details, although I'm sure you're all aware of some of the diseases that we're exposed to. Many of them are the ones that are more commonly known: hepatitis, meningitis, HIV and the like. You can read that on your own, and I'm sure Dr Schabas probably covered most of that anyway.
On page 7, I'd just like to bring your attention to the fact that firefighters are truly exposed to communicable disease, and many laypeople believe that firefighters respond to fires only and fight fires. Indeed, now about 60% of firefighters' work involves medical calls and responding to people in need of emergency medical care.
The International Association of Fire Fighters, which we belong to, has done a survey of death and injury for a number of years in the United States. According to their reports, one out of every 15 American firefighters will be exposed to a communicable disease during 1992. This is the information for 1992: 18.8% were exposed to tuberculosis, 12.6% to hepatitis B, 21.9% exposed to HIV, and 46.7% were other communicable diseases.
Unfortunately, in Ontario we don't have those kinds of statistics yet, although with the Public Safety Services Liaison Committee, a committee set up with the Ministry of Health, we are in the process now of trying to collect that kind of information. In the past, we were unable to collect that because there was no process in place so we don't have those kinds of statistics for Ontario, but as I said, 60% of our calls are medical calls, so you would think that, maybe not in those exact numbers, but we'd be in some proportion, the same kind of exposures.
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At the bottom of the page there we list some of the areas where we're actually exposed during the course of responding to medical calls, and obviously there's the administrating medical care to injured patients, rescue of victims from hostile environments: that can include burning structures, vehicles, water, contaminated atmospheres, oxygen-deficient atmospheres.
We support universal precautions. You'll see in the appendix that I wrote an article on universal precautions that has appeared in the Ontario fire marshal's Messenger magazine. The Provincial Federation of Ontario Fire Fighters strongly supports universal precautions. Unfortunately, when you're exposed to auto extrications, sharp metal and the like, the universal precautions can be compromised just because you can be cut or they can fail when you're operating machinery and stuff like that. So we do have an exposure and at page 8 there's a universal precautions outline and a couple of appendices that I made mention of earlier. Appendix A references "Universal Precautions," the article I wrote and the one that appeared in the fire marshal's Messenger magazine.
I'm also on the section 21 committee, which is a labour advisory committee to the Minister of Labour. We issued guideline number 6 which appears in the appendices, appendix B, and this has been distributed to every fire department in Ontario and deals with the whole issue of communicable diseases. If you get the chance to read that, you'll see that we stress universal precautions in there as well.
I'd just like to point out that we believe in universal precautions and we're doing the utmost we can to educate our members on it, but that doesn't take away from the fact that even taking all those precautions there's still the chance of failure in the gloves, what have you, just because of mechanical failure or because the environment itself renders those gloves useless.
Also on page 8 under section 5 -- I'd just like to read through this because this is an example of how the present system fails us as firefighters right now. This involves the Scarborough Fire Department in March of this year.
On March 4, 1993, at 0716 hours, pumper 14 of the Scarborough Fire Department responded to an inhalator call at 160 Chester Le Blvd, unit 80. Upon arrival they found a young female lying face up on her bed with white foam discharging from her mouth. The crew assessed her condition and determined she had no vital signs. They then proceeded to aspirate the foam from her nose and mouth. They attempted to insert an airway but due to stiffness of the jaw were unable to insert the airway. Due to the stiffening of the body, CPR was not begun.
Shortly thereafter the ambulance crew arrived and the fire department assisted in moving the patient on to a stretcher and outside to the ambulance. This would appear to be a fairly routine medical call at this point.
At 1500 hours, Scarborough's dispatch contacted Captain R. Snelgrove, the officer in charge of pumper 14, to advise him that they had received information that the young girl they had attended to was suspected to have meningitis. Pumper 14 was removed from service. The duty officer for the department of ambulance services called to determine what action the fire crew were taking.
At 1700 hours, normal quitting time for the Scarborough Fire Department, the assistant deputy chief R. Cook called to inform the captain that the department was working on the problem. The crew were afraid to go home in case they passed the infectious disease to their families.
At 1800 hours, Captain Snelgrove called the department of ambulance services duty officer to see what they were doing for the ambulance attendants. He was informed that the ambulance attendants were at Scarborough Grace Hospital receiving refampin pills. Captain Snelgrove phoned his wife at home who phoned their family doctor. The family doctor advised that the chance of infection was minimal. Other family doctors contacted by the crew advised taking the medicine right away, which further heightened their anguish.
At 1930 hours, the crew discussed the situation at length and decided to go home.
At 0910 hours the following morning on March 5, the medical officer of health phoned Captain Snelgrove to inform him only persons who had attempted CPR required preventive medication and to confirm that meningitis was involved.
This brief overview was provided by the Scarborough Fire Fighters' Association and it points out a number of flaws in the system in that there are no personnel designated to inform us when we're exposed to these communicable diseases and the fire department itself had no kind of contact system in place to track it down. These are the things we hope to have changed in Bill 89 or with the mandatory guidelines.
On the next page, in section VI, I list some of the recommended revisions that we see for Bill 89.
I'd like to point out to this committee that Bill 89 by Mr Tilson was actually introduced probably at our lobbying of him. In 1992 we had an annual legislative conference where firefighters met with their respective MPPs from their riding, and one of the issues we introduced to Mr Tilson was the need for a communicable disease reporting system. From that, he saw fit to introduce Bill 89.
Like I said, we've been working on this for three years with no results. Bill 89 I guess shook some trees and we ended up meeting Dr Schabas, who in the period of a couple of months accomplished for us what seemed a miracle, because in three years we hadn't moved nearly that far with the Ministry of Health. He introduced the mandatory guidelines. We -- I myself -- sat on that committee that developed those guidelines, and we'd like to go on record as saying that we're in full support of those guidelines that Dr Schabas developed, obviously, because we had input into them.
Mr Tilson's Bill 89 deals with an issue that's not addressed in the mandatory guidelines, and that's the good Samaritan question, although in our meetings we deliberated on this with Dr Schabas. It was his statement at one of our meetings that he was more than willing to allow the good Samaritan the same flexibility as the emergency care workers in that, if they contact the local medical officer of health, they would track it down the same as they would for us.
So kind of in summation, it's our recommendation that Bill 89 be revised to either incorporate the mandatory guidelines or to allow for the coexistence of the mandatory guidelines.
One of the things that hasn't been addressed either in the mandatory guidelines or this bill that should be addressed is the requirement for municipalities to provide universal precautions for their emergency care givers. There are many fire departments, police departments and ambulance departments that do not provide universal precaution equipment on a widespread basis to their crews, and that's an issue that hasn't been addressed in either one of these.
In summary, we support Bill 89 in principle, but we see the mandatory guidelines as a clear, workable solution in that the designated officer of health will weed out a lot of those false alarm cases, from our people included, where firefighters think they have an exposure but in essence, because they practice universal precautions, they truly do not have an exposure.
If there's some way this committee can work on incorporating those two principles together, Bill 89 and the protection it offers for good Samaritans, which in the examples Mr Tilson gave in a lot of cases will be our people anyway, coming and going from work or just out and about, who will stop because of their training and render first aid to people on the side of the road, then that would very good.
If it comes down to a choice of one will die over the other, we would have to support the mandatory guidelines, just because it's clear and serves the emergency services better, from our point of view. With that, I'll answer any questions you have.
The Chair: Thank you very much. We'll begin with Mr Murphy, six minutes per caucus.
Mr Murphy: Thank you very much. You've obviously done a lot of work and I very much appreciate it. I think actually it was from your organization that I got some information about the US federal notification law. We've heard today in any event about that concern, and Dr Schabas was quite clear that his view was that he'd prefer to have it in a guideline format, at least at this point in time. He thought it would be best to have it maintain the flexibility at this point, at least until we see how the mandatory guidelines work, and wouldn't want to put it in legislation at this time. I'm wondering, as to that flexibility point of seeing how it works, what's your response to that idea, that it's better to give some flexibility now before you enshrine it?
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Mr Kostiuk: On the flexibility question, having the mandatory guidelines will allow us to change it as we go if we find that there are flaws in the system. Obviously, there's going to be a break-in period because we're going to have to train these designated officers to recognize what a true exposure is. There will be a break-in period before it's really working up to the speed that we see it.
The beauty of having it in regulations is that it forces the issue along a lot quicker. If it was incorporated into Bill 89, obviously employers would have to make sure that the designated officers are trained and that the system's in place quicker. There's a tradeoff in those two things. I think the trouble with regulations is that if you do find a flaw, it's harder to make that correction, where in a guideline you can make that correction right away.
Mr Murphy: Is there a way you can see of accommodating it by enshrining principles? I suppose you could say: "There shall be guidelines governing this. They shall provide protection for confidentiality and reasonable access to information about exposure." Do you think something like that could be satisfactory, where it's just principles and then you just allow the creation of guidelines, and that would maybe accommodate the flexibility concern because then you could draft guidelines that could change but you'd have the principle enshrined?
Mr Kostiuk: That might be a very good solution to it, that the regulations incorporate the mandatory guidelines as the means of fulfilling the principles that you outline.
Mr Murphy: I know you've done a lot of work on this. How does it work in the US? There's a federal overriding legislation --
Mr Kostiuk: The White-Ryan Act is basically what the mandatory guidelines were patterned after. It allows for the designated officers and such. What it allows for is that if American states have a better program, then they don't have to adopt it. If they don't, if they're an OSHA state, meaning they accept the OSHA regulations as part of their state occupational health and safety act, then they have to adopt that White-Ryan paper, which is like our mandatory guidelines.
What they're in the process of doing in the United States is laying out the actual scenario cases where firefighters could be exposed to communicable disease to make it clear for the designated officers to rule on it. That hasn't been done yet, only because there haven't been enough cases yet to really iron it out.
Mr Murphy: I was trying to get at whether you'd seen something that was more, "Here are the principles in legislation, and work out guidelines to provide flexibility." Have you seen an example of that more general structure?
Mr Kostiuk: No. Like I said, the White-Ryan Act is basically what the mandatory guidelines were based on, and that's an act.
Mr Murphy: Have you, and when I say "you," I mean the federation or one of the other organizations, and maybe even through your association with some of the US -- has there been an occupational health and safety complaint surrounding this issue at any point that you're aware of?
Mr Kostiuk: In the United States they've had a number of cases where they're actually investigating whether -- there have been a couple of cases where people have died from HIV that they've alleged was occupationally involved. But to be honest with you, the lifestyle question comes into it too, and those people may have had a lifestyle that caused the problem. There's been a hepatitis death to a firefighter in 1992 in the United States. Those have all raised the issue. We're looking into that question of occupational disease, how it relates to these things.
Firefighters as a whole, and Bernie can attest to this, are very concerned about this issue. It's not to the point where they're panicking, because they realize the risk is low occupationally, but they see the problem being that once you have an exposure, presently there's no system for them to confirm in their own minds whether they've been exposed or not. Knowing that you've not been exposed in a lot of cases is just as satisfying as knowing that you should be taking treatment, because now the whole question of going home and taking it to your family is addressed as well.
Mr Murphy: I have one last question. I don't know whether you've heard, but I represent a riding which has a lot of people who have suffered or are suffering from HIV or have AIDS, or their friends or partners. The concern is, and I'll put it to you fairly squarely, that you're going to end up with a firehall or other emergency care that has a list of addresses. This is the confidentiality concern.
I'm putting it to you so you can allay the concern for us, that there will not be a circumstance arise where they're saying, "Gee, I don't know if I want to go to that place because we've got information that it's a place where we better be careful." That concern has come to me and I want to put it to you so you can lay it to rest.
Mr Kostiuk: We can answer that in two ways. One is that I think we learned our lesson with the list. There was a list issue that was brought up in the Toronto fire department not too long ago, within the last couple of years. I think we've learned our issue on that.
To be quite frank with you, in my own city where I respond, we know of a couple of AIDS patients. We've been there a number of times because they're in the last stages and they're suffering. We don't reduce the service that we provide to them. We take precautions, make sure we put our gloves on and stuff like that, but it doesn't reduce our response to them and it doesn't reduce the level of care we provide to them. All we do is make sure that we take precautions if we have to touch them.
The confidentiality thing, once we've been there once, there's no list goes up, but the crews that have been there know that there's an AIDS patient at such and such an address. From then on, there's no way you can wipe that from their memories, but it hasn't reduced the service as well.
Mr Bernard Cassidy: If I could add to that, I work in your riding and one of our regular calls is to Casey House. So the confidentiality there is certainly up front. We respond to that as quickly and thoroughly and eagerly as we would to any other call. We are regular visitors. We know everyone in there is an HIV patient, and certainly the service is no different than when we respond to an unknown first aid call. So we can guarantee that would not be a lack of service.
Mr Tilson: Mr Kostiuk, thank you very much for your presentation. I appreciate your comments with respect to the mandatory guidelines and I agree with you that sometimes in this place you take what you can get for dealing with an issue.
One of the concerns I have with the mandatory guidelines is that if it was decided by this committee to recommend to the House that perhaps the mandatory guidelines were adequate and a bill was not required, notwithstanding the good Samaritan argument, which I still believe is a valid argument, what happens if the mandatory guidelines aren't followed?
Mr Kostiuk: There'll be some time lag where we'll have to educate the membership on it. One of the benefits to the mandatory guidelines is that the way it will work, you'll have to have good cooperation between the designated officer and the local medical officer of health. Really, that's a two-way street in that we will probably benefit from that. A lot of locals that are not on line or on stream now will become educated because of their correspondence or their meeting with the medical officers of health. That'll make them more aware of the issues on universal precautions and those things. So it's a two-way street.
The medical officer of health, under the guidelines, will be required to follow it, as I understand it. Whether the municipalities have to follow it and appoint a designated officer of health will be something we'll have to chase down, and that may be an issue that should be addressed in the regulations.
Mr Tilson: I say to you there's no law that requires them to do that, that requires that these mandatory guidelines be followed, hence the reason for this bill. I'll be the first to admit there need to be improvements in definitions and other things that have been raised by the previous speakers. It's an observation I have, which is that it may well be that the mandatory guidelines could be used to assist perhaps in preparing for regulations, because the bill doesn't tell you how you do this.
It may well be that there will have to be some work by somebody. I don't know who that is. Hopefully, the Ministry of Health officials would assist the committee if the committee chose to follow the principle of the bill. The fear I have is that whether you're looking to a care giver, a firefighter, a police officer or the good Samaritan, there is no requirement that the mandatory guidelines need to be required, even if the mandatory guidelines are, as you suggest, expanded to the good Samaritan. It's just an observation I have that your membership may be given a false sense of security.
Mr Kostiuk: I agree with that point. There probably will be locals that will drag their feet on it, whereas if it was a regulation, we would have a means of forcing them along to follow it more quickly.
The Chair: Mr Tilson, I could extend your time if you would like. Would you like Dr Schabas to respond to that?
Mr Tilson: Sure. We ask him for all the other questions. Why not?
Dr Schabas: I should have left when the going was good.
The Chair: No, we need you here.
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Dr Schabas: Your question about enforcement is an important one. I think the reality of Bill 89 or mandatory guidelines or any mechanism to deal with this issue is that those mechanisms are only going to work to the satisfaction of the firefighters or the ambulance attendants or whoever if they're entered into in good faith and there's active cooperation between public health and the emergency services.
The reality is you could write any law you want, and looking at Bill 89, I can tell you that there are so many interpretative words that are going to be in any piece of legislation that if public health feels this is an inappropriate piece of legislation and it's forced upon them, it won't work and you'll still have the same concerns and complaints from the emergency service workers.
But the mandatory guidelines are different, and I hope you'll get some sense of it over the course of the hearings, because you will hear from medical officers of health as you were hearing from the firefighters. While there's probably no group that's totally delighted with them -- before I was at this meeting, I met with the provincial medical officers of health and their professional association and there are lots of concerns, of a very different nature but lots of concerns, their argument being: There is no problem, so why are we addressing this either with legislation or mandatory guidelines? The difference, though, is that the mandatory guidelines were entered into in a collaborative process which involved all the interested parties, and I think there is a spirit of cooperation to try to make these mechanisms work, with some give and take on all sides. For the prospects of dealing with the concerns and not ruffling the feathers of public health unnecessarily, our best bet is to follow this route, but there's no mechanism that's going to guarantee success.
Mr Tilson: I understand that; nor are your mandatory guidelines. I don't mean to offend you, but it's as if: "Trust me. Everything will be looked after." I guess whatever type of care giver you have, the care giver wants to know there's a law out there, that they will have access to this information to protect not only them but the members of their family. I gave the example that there was an incident in my riding, in the town of Caledon, where a police officer apprehended an individual -- I don't know whether that person was charged or not -- and the accused person bit the police officer and the next day the accused person died. It's a bit of a problem. There are a lot of loose ends left in the bill, and I'm not so sure the mandatory guidelines would deal with that. Go ahead.
Dr Schabas: To deal with a more tangible example, the example Mr Kostiuk raised about the suspected case of meningitis, it's very clear how the mandatory guidelines would have facilitated that process. Unlike the bill, which would have required a written request and a whole bureaucratic process to get that information, the mandatory guidelines would have led to a designated officer who would have picked up the phone, called the medical officer of health and likely would have said, "We haven't had a report of meningitis yet, but here are the issues, that only if you'd provided CPR to the person would there have been a significant risk, and since nobody provided CPR, then rest easy, there's nothing to be worried about." The concerns, and let me emphasize that this whole issue is about concerns, would have been laid to rest very quickly and efficiently by the mandatory guidelines.
Mr Tilson: All right. I'm not getting anywhere with this issue, and I'd like to move on to another one while I have you both at the table. We've now had conflicting statements by both of you as to statistics.
Dr Schabas: No, you haven't.
Mr Tilson: Okay, correct me.
Dr Schabas: Mr Kostiuk quoted statistics about exposures. "Exposure" defined means that when somebody bleeds on me there's an exposure potentially. But that's very different from actual occurrence of disease. It's a little bit like when you drive down the 401 you're exposed to the risk of being killed in a motor vehicle accident, but let me assure you that risk is extremely small if you drive carefully and safely.
Mr Tilson: I understand that, but the intent of the bill and hopefully the intent of the mandatory guidelines will deal with exposures. It's like the police officer who's bitten by a dog or by an accused individual.
Dr Schabas: The difference is that the mandatory guidelines do not infringe unnecessarily and unreasonably on personal privacy the way Bill 89, as it's drafted, does.
The Chair: One last question.
Mr Tilson: I always have a last question.
The Chair: It's almost 10 minutes, Mr Tilson.
Mr Tilson: Thank you very much for your leniency. Will the Scarborough situation that was described by Mr Kostiuk be solved by the mandatory guidelines?
Mr Kostiuk: Yes, we feel it will.
Mr Tilson: Thank you.
Mr Cassidy: If I may, Mr Chair, I think one part of the mandatory guidelines was not stressed. We talked about the physical part, but there's the mental part and the stress part of where the mandatory guidelines will address it immediately.
As with the Scarborough case, if you are sitting at your place of work waiting for this decision to come down and you have to wait for a paper trail to catch up, then the undue stress of possibly a life-threatening situation -- the mandatory guidelines would alleviate that much more quickly and more effectively than waiting for written reports and paper. There's definitely a mental strain involved in the tension of waiting.
Mr David Winninger (London South): Mr Kostiuk, you mentioned earlier that it was your federation that acted as a catalyst for the introduction of Bill 89 and also for the development of the mandatory guidelines. Now I'm hearing today that if you had a preference, it would be for retaining the mandatory guidelines as opposed to Bill 89 because the mandatory guidelines are clearer, obviously, and perhaps a little more flexible.
Is it common knowledge out there in the community of emergency service organizations that this is your most recent position and that you support the mandatory guidelines?
Mr Kostiuk: Yes. If you asked the firefighters who are representing the locals out there, they would know that position.
Mr Winninger: What about other emergency services, such as ambulance, paramedic --
Mr Kostiuk: Actually the committee that developed the mandatory guidelines is the Public Safety Services Liaison Committee. That committee was struck by the Ministry of Health when we first raised this issue in the 1990s and is made up of representatives from all the different groups, the police, the police chiefs, fire chiefs, the fire unions, the volunteers, the ambulance attendants. All those groups are represented on the Public Safety Services Liaison Committee.
Mr Winninger: I see. Did you advise Mr Tilson so he'd have an opportunity to withdraw his bill?
Mr Kostiuk: Mr Tilson was invited to one of our earlier meetings when Dr Schabas got involved in it and he brought up the issue about being able to develop something under the mandatory guidelines, but to be fair to Mr Tilson, I think he fell out of the paper trail afterwards.
Mr Murphy: On a point of order, Mr Chair: It's a bit unfair. I think the witness's testimony was that if placed in the position of making the choice, they would choose one over the other. Mr Winninger, using his fine legal skills, has taken that as --
The Chair: I think he made his point.
Mr Winninger: I don't see how this is a point of order. He's interpreting the witness's evidence.
The Chair: I have allowed the member to complete his thought. You're quite right. Mr Winninger, further?
Mr Winninger: I was just going to conclude, but now Mr Murphy has spurred me on. I believe my colleague may have a question.
Mr O'Connor: I appreciate the fact that we actually do get a chance to debate Mr Tilson's bill because if it wasn't through this bill, we probably wouldn't be having this discussion about the guidelines. Regardless of my colleagues, I want to support Mr Tilson in bringing this forward so we could have this discussion anyway.
The question that comes to my mind would be the designated officers, and let's take a look at the scenario you presented. An officer or attendant is put in a situation where that question mark is raised. How would you see that process happening between the designated officer and the medical officer of health? How does that relationship work? Should the attendant or the designated officer not be there, how does that work? I think Mr Tilson's got some concerns here still and maybe you can help us with this.
Mr Kostiuk: The way I see the designated officer question working in the example I've given is that probably not initially but down the road, some of the provisions we made under the mandatory guidelines are for an educational package to be put together for these designated officers so they can recognize whether it's true exposure or one where the guys feel they're exposed but it's not true exposure.
Somewhere down the road that designated officer of health himself would probably have been able to make the determination that this wasn't truly an exposure because he would have questioned his crew or the fire department's crew and determined that they hadn't performed CPR, hadn't touched any body fluids, so therefore they weren't exposed. If there's a good working relationship between that designated officer and that fire department and the rest of the personnel, that would put them at ease.
For the first little while, maybe the designated officer for the fire department isn't clear himself whether it's a true exposure or not. In that case he would contact the medical officer of health to make that determination. If they've worked to the point where he knows the medical officer of health to contact in his local jurisdiction, even if it's a weekend or something, he could probably contact him, maybe not the medical officer of health himself but maybe one of his inspectors or some of his coworkers, and get the kind of information that would put the crew at ease.
It's really that whole confidence thing, that you know you can contact somebody who can give you the right information.
Mr O'Connor: So there's a development and a network that would have to be established right in the community?
Mr Kostiuk: That's right.
Mr O'Connor: That type of community response to it may actually be better than a legislated, top-down type of response; you'd actually have better communication and cooperation.
Mr Kostiuk: In the city of York I met with our own medical officer of health when we raised this issue initially. They were more than cooperative to sit down with us and iron out any of the problems we saw in the system and they were more than willing to work with us and do what they could within the law to determine whether we had exposure.
I think once you get to that point where -- and this would kind of force the issue -- you have to go see the medical officer of health, make contact with him, he now knows the fire department people to contact. I think a two-way street out of it would really develop some good networking.
The Chair: Thank you, Mr Kostiuk and Mr Cassidy, Dr Schabas, Mr Wright and Mr Brown for your presentation and your participation in this committee.
Can I ask the members, while a number of people are here, would it be useful to send to the participants who are coming the draft mandatory guidelines to give them a sense of what work is going into this? Then they can weigh the comments they're likely to make with those guidelines and as a result have a more informed presentation. Is that all right? Okay, so we'll do that. Thank you very much. This committee is adjourned until next Monday at 3:30.
The committee adjourned at 1734.