ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
COALITION FOR LESBIAN AND GAY RIGHTS IN ONTARIO
THOMAS MORE LAWYERS' GUILD OF TORONTO
NATIONAL ACTION COMMITTEE ON THE STATUS OF WOMEN
PARKDALE COMMUNITY LEGAL SERVICES
CONTENTS
Thursday 22 February 1996
Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1995, Bill 19, Mr Harnick /
Loi de 1995 modifiant des lois en ce qui concerne l'intervention, le consentement
et la prise de décisions au nom d'autrui, projet de loi 19, M. Harnick
Hilary Laidlaw
Toronto Hospital
Margaret Keatings, nursing director, education and research
Dr Neil Lazar, department of medicine, University of Toronto
W. Glen How and Associates
John Burns
Don Kirkland
Michael Gordon
Royal College of Dental Surgeons of Ontario
Dr Minna Stein, deputy registrar
Dr George Citrome, president
Alan Bromstein, legal counsel
Marilyn O'Connor; Dianne Stone
National Trust Co
Glenn Davis, national product manager, wills and trusts
Coalition for Lesbian and Gay Rights in Ontario
Nick Mulé, director
Thomas More Lawyers' Guild of Toronto
Hugh Kelly
Philip Horgan
National Action Committee on the Status of Women
Nandita Sharma, member
Older Women's Network
Evelyn Turner, member
Parkdale Community Legal Services
Lilith Finkler, community legal worker
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président: Martiniuk, Gerry (Cambridge PC)
Vice-Chair / Vice-Président: Johnson, Ron (Brantford PC)
*Boyd, Marion (London Centre / -Centre ND)
Chiarelli, Robert (Ottawa West / -Ouest L)
Conway, Sean G. (Renfrew North / -Nord L)
*Doyle, Ed (Wentworth East / -Est PC)
*Guzzo, Garry J. (Ottawa-Rideau PC)
Hampton, Howard (Rainy River ND)
Hudak, Tim (Niagara South / -Sud PC)
*Johnson, Ron (Brantford PC)
Klees, Frank (York-Mackenzie PC)
*Leadston, Gary L. (Kitchener-Wilmot PC)
*Martiniuk, Gerry (Cambridge PC)
*Parker, John L. (York East / -Est PC)
*Ramsay, David (Timiskaming L)
Tilson, David (Dufferin-Peel PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Brown, Michael A. (Algoma-Manitoulin L) for Mr Chiarelli
Caplan, Elinor (Oriole L) for Mr Conway
Fox, Gary (Prince Edward-Lennox-South Hastings / Prince Edward-Lennox-Hastings-Sud PC) for Mr Klees
Johns, Helen (Huron PC) for Mr Hudak
Kells, Morley (Etobicoke-Lakeshore PC) for Mr Tilson
Marchese, Rosario (Fort York ND) for Mr Hampton
Clerk / Greffière: Bryce, Donna
Staff / Personnel: Swift, Susan, research officer, Legislative Research Service
The committee met at 0902 in committee room 1.
ADVOCACY, CONSENT AND SUBSTITUTE DECISIONS STATUTE LAW AMENDMENT ACT, 1995 / LOI DE 1995 MODIFIANT DES LOIS EN CE QUI CONCERNE L'INTERVENTION, LE CONSENTEMENT ET LA PRISE DE DÉCISIONS AU NOM D'AUTRUI
Consideration of Bill 19, An Act to repeal the Advocacy Act, 1992, revise the Consent to Treatment Act, 1992, amend the Substitute Decisions Act, 1992 and amend other Acts in respect of related matters / Projet de loi 19, Loi abrogeant la Loi de 1992 sur l'intervention, révisant la Loi de 1992 sur le consentement au traitement, modifiant la Loi de 1992 sur la prise de décisions au nom d'autrui et modifiant d'autres lois en ce qui concerne des questions connexes.
HILARY LAIDLAW
The Chair (Mr Gerry Martiniuk): If I may call the standing committee on administration of justice to order, our first submission is by Hilary Laidlaw.
Ms Hilary Laidlaw: Good morning. I'd like to first thank this committee for the opportunity to address you. My name is Hilary Laidlaw. I am a lawyer with the firm of McCarthy Tétrault here in Toronto. My practice focuses exclusively in the area of estates law, and that necessarily includes a component of estate planning, including planning for incapacity.
I speak to you today in my capacity as a private practitioner and my comments are made on my own behalf and on behalf of the colleagues with whom I work at the law firm of McCarthy Tétrault in this area. They're based on our experiences with the Substitute Decisions Act and the feedback we've received from clients in advising them on matters to which the Substitute Decisions Act relates.
I'd like to address a couple of points with the committee today in the time that I have. First, in connection with the formalities relating to powers of attorney for property and for personal care, I'd like to put forward my absolute support for the repeal of the witness attestation provisions that now exist in the Substitute Decisions Act. Specifically in connection with powers of attorney for property, subsection 10(3) of the SDA provides that, "Each witness shall, if the witness has no reason to believe that the grantor is incapable of giving a continuing power of attorney, sign the power of attorney as witness."
I have found there's a difficulty with that provision, specifically relating to its interpretation. By that I mean that there seems to be some dispute as to whether this particular provision imposes a positive obligation on the witnesses to satisfy themselves as to the capacity of the grantor to give the power of attorney either for property or for personal care. That has led, in my experience, to a difficulty sometimes in finding witnesses to a power of attorney document, particularly in situations where the grantor of the power of attorney is a resident of a hospital or perhaps a nursing care facility or other similar type of institution.
The staff at those institutions are often very reluctant to act as witnesses simply because there's this uncertainty as to what the obligation is to be satisfied as to the capacity of the grantor. For fear of becoming involved in subsequent litigation if the capacity is ever called into issue, staff at these facilities by and large are not prepared to act as witnesses. That can, in my experience, create difficulties simply in the procedure of granting the power of attorney or executing the power of attorney. If I'm required to go out to a client who is a resident in one of those facilities, invariably I'll be required to take a second witness with me, which can increase the cost of the whole process to a client, unnecessarily in my view.
The difficulty is not, however, confined just to situations where the grantor is in a hospital or other care facility. I often find that the question arises as to whether the practice that many solicitors engage in, including myself, is appropriate. Specifically I refer to the procedure whereby I would witness the power of attorney along with another member of staff at the law firm. The question that arises, obviously, is if this other individual has not had contact with the client sufficient to form an opinion as to his or her capacity, does this provision then prevent that person from acting as a witness if in fact there is this positive obligation to be satisfied as to capacity? Because of the uncertainty that this poses, there is a real question as to the propriety of that procedure.
I therefore reiterate my support of the repeal of this provision, which will clarify that the witnesses need not form this opinion. Certainly it is my view that if a solicitor is advising a client with respect to the giving of a power of attorney for property or for personal care, it's a professional obligation on the solicitor to be satisfied as to that individual's capacity, but in my view imposing the obligation on a witness is a far too onerous requirement.
Moreover, I don't think that the typical lay witness would have the ability to form that opinion or make an impression as to the capacity to give a power of attorney without a full knowledge of the terms of the Substitute Decisions Act, the test that that act sets out in so far as capacity is concerned with respect to both powers of attorney for property and for personal care. I think that this proposed repeal of the provision will therefore clarify exactly what the requirements are for witnessing and make it clear that these are formalities as in fact they should be.
I think it's worth noting in this regard as well that there is no similar requirement for the witnessing of a will in Ontario. The Succession Law Reform Act, which governs the witnessing requirements in connection with testamentary documents, does also require two witnesses but does not require that the witnesses make any statement with respect to the capacity of the testator to make a will.
In my view, there is an analogy to be drawn with respect to wills and powers of attorney, both of which purport to deal with property and both of which are extremely important documents. I therefore see no justification in requiring that witnesses make the attestation statement in the case of powers of attorney and not in the case of wills. I think this will clarify the obligations and make them more concordant in both those circumstances.
Having eliminated the requirement that the witnesses make this statement with respect to the capacity to give a power of attorney, I can see no justification for increasing or adding to the pool of allowable witnesses by permitting the child of a grantor to witness the power of attorney. In my view, that should not be necessary since, if the attestation statement is no longer required, the available pool of witnesses will likely be greater.
In my experience, I often find that elderly people in particular can be quite vulnerable to their children. Unfortunately, this is a situation that I see very often, and I think the proposal to permit a child of a grantor to witness a power of attorney would open the door perhaps to situations of abuse. It would at least make it easier for the kinds of abuses I'm thinking of to occur and at the very least it would increase the appearance of impropriety in the witnessing procedure.
I think, having cured the difficulty with respect to availability of witnesses by removing the attestation clause, there ought to be less difficulty in executing powers of attorney and having witnesses available for them and there ought not to be this need to include children of the grantor in that allowable pool of witnesses.
0910
If I could focus for a moment on certain of the more substantive provisions in Bill 19, I would like to put forward my very strong support for the repeal and replacement of sections 16 and 17 of the SDA as they now appear. Those provisions deal with a situation in which a certificate of incapacity is issued with respect to an incapable individual and provide that at that time the public guardian and trustee become statutory guardian of the person's property. However, if there is a continuing power of attorney for property in existence, the Substitute Decisions Act as it is now written does permit the attorney, under that continuing power of attorney for property, to apply to the public guardian and trustee to replace her as statutory guardian.
The proposed repeal of these provisions brings into effect a different procedure whereby if there is a continuing power of attorney for property, the statutory guardianship of the public guardian and trustee that comes into effect on the issuance of a certificate of incapacity will automatically terminate when the attorney, under the continuing power of attorney for property, files with the PGT a copy of that document and an undertaking to act in accordance with it.
What I find in my experience is that this is a provision, the provision that exists now, that causes the most concern for clients who come to me asking for my assistance in preparing for the event of their incapacity. When they're contemplating making a power of attorney, the purpose of doing so is to ensure the orderly administration of their own affairs in the event of incapacity in accordance with the scheme that they themselves put into effect now at a time when they're capable of doing so.
Clients find it very difficult to understand why the government can still have involvement in their affairs in a situation where they've already given thought to these issues and attempted to put into place a system that would allow them to continue the management of their affairs through their own choice of substitute decision-maker. This has, as I say, caused a great deal of concern for them, even though the circumstances under which the public guardian and trustee might become involved are somewhat rare. In other words, a certificate of incapacity has to be issued in order for the statutory guardianship to come into effect.
Repealing these provisions and ensuring that the statutory guardianship terminates immediately on filing that continuing power of attorney for property with the PGT will give individuals much more comfort that their choice of decision-maker will be respected and that their choice of the manner in which their affairs will continue to be administered will also be respected. It will give them much greater comfort in knowing that they can determine now, at this point in time, how their affairs will continue to be managed and, similarly, much greater comfort in knowing that they can continue to be privately managed as opposed to having outside involvement, whether by the government or some other source.
I would suggest, however, that since these provisions do in fact indicate that the power of attorney should be paramount and that an individual's choice of decision-maker should be respected, it might be worthwhile to consider something akin to the old regime that was in effect under the Powers of Attorney Act, whereby a person making a power of attorney for property had the ability to oust the jurisdiction of the public guardian and trustee in situations where a certificate of incompetence was issued under the Mental Health Act with respect to an individual in a psychiatric institution.
It seems to me the effect of what the replacement of sections 16 and 17 does is similar to that and that the Legislature could continue going farther and permitting any individual giving a power of attorney at this point in time to provide that the PGT would not become involved as statutory guardian on the issuance of a certificate of incapacity in situations, of course, where there is a continuing power of attorney for property in effect.
I myself have difficulty understanding what protection is afforded or what possible harm is addressed in having the PGT become involved as statutory guardian of property under these circumstances. I think that individuals would be given much greater comfort in knowing that they have control over their affairs by allowing them to eliminate the involvement of the PGT altogether.
It seems further to make sense in that where there is a continuing power of attorney for property, the statutory guardianship of property by the PGT is likely only to last for a very short period of time, since it terminates immediately on the filing of the document. Therefore I think the end result would probably be the same in allowing an individual to specifically oust the jurisdiction of the PGT in circumstances of that nature.
If such a change is contemplated, however, I think it would be necessary as well to consider certain provisions that would allow grandfathering of powers of attorney that are done now under the Substitute Decisions Act as it exists and, in addition, recognizing the provisions that were put in powers of attorney done under the old Powers of Attorney Act that did oust the jurisdiction of the public trustee, as she was then known, in situations where a certificate of incapacity is issued. In other words, I think there have to be transitional provisions that will take into account powers of attorney done under the Substitute Decisions Act as it now exists, and similarly under the Powers of Attorney Act when it was possible to include a provision eliminating the involvement of the public trustee under those circumstances.
With respect to powers of attorney for personal care, I would like again to indicate my support for the provisions that would repeal the validation process. Once again, I find from my experience in advising clients on these matters that they have difficulty in understanding why, having made the choice of substitute decision-maker now with respect to personal care issues, there's still a possibility that that individual might not be empowered to act at the time when it's necessary to do so.
The validation process as it now exists is cumbersome and can be very expensive for the clients as well. It requires two assessments by a qualified assessor. The cost of these assessments has varied somewhat in my experience, but in any event, can be more than what is contemplated by the client. There is still this anomaly of the fact that a client attempts now to provide for the situation when he or she is incapable of making these kinds of decisions but the plans that are put into effect now might not be carried out if a validation is required.
So I think that the proposal to eliminate the validation process is a positive one. I think it will greatly simplify the process and give that much more force to the powers of attorney for personal care. It certainly has been my experience that clients react very, very favourably to the ability to give a power of attorney for personal care. This has been an issue with clients for many, many years, and for many years before the enactment of the Substitute Decisions Act, the most that a client could do was simply indicate in a document, often referred to as a living will, what his or her wishes were. But these of course had no legal effect, they had no legal impact. They were more simply an expression of wishes or intentions, and to the extent they had any affect at all, it was more one of moral suasion. They like the ability to be able to name somebody to positively make these decisions and to have that legally binding and effective, and the elimination of the validation process will simply ensure that the procedure or the system that an individual puts into place now for making those kinds of decisions will in fact be respected.
On smaller points: I'd like to also indicate my support for the provision proposed in Bill 19 which would specifically provide that an attorney for property can obtain information about the donor's property and can require such property to be delivered to him or her on request. Bill 19, in section 21, proposes that for these purposes property would be specifically defined to include a will. That is a question that I find is asked very often by the people who carry power of attorney for another person. It's one that we have grappled with many times in our office, whether we have the ability to release a will or a copy of a will to someone who purports to act under power of attorney. I think this provision would not only give clear guidance to those giving powers of attorney and provide them with an opportunity to modify that or amend it if they don't want the terms of their will to be disclosed, but also give clarity to the persons who have control or custody of that property. I think it clearly defines what our rights and obligations are, and in that sense I applaud the efforts of the Legislature in respect of that provision.
0920
I suggest that it might be preferable if the definition of "will" were expanded to include not only a will but also a testament, a codicil, an appointment by will or by writing in the nature of a will in the exercise of a power, and any other testamentary disposition. That in fact is the definition of "will" as is set out in the Succession Law Reform Act, and I think a similar definition along those lines would be well advised in the Substitute Decisions Act as well. It would make the language of both acts consistent and would also provide access by the attorney under a power of attorney for property to the kinds of documents that are contemplated in this provision.
It might in fact go further and allow access to any information relating to registered retirement savings plans, to pensions or other similar plans, these being somewhat testamentary in nature too, particularly in situations where a beneficiary designation has been made under these plans.
I would also like to indicate my support for the provisions proposed in Bill 19 that would give some relief to the guardianship that comes into effect by virtue of a committeeship appointment made before the enactment of the SDA. The Consent and Capacity Statue Law Amendment Act provides that anyone who was appointed a committee, prior to the implementation of the Substitute Decisions Act, under the Mental Incompetency Act, which of course has now been repealed, automatically becomes a guardian of the property on the enactment of the SDA, but that that guardianship will terminate two years after the enactment of the statute unless before that time a form has been filed with the office of the PGT in prescribed form by the committee.
Bill 19 proposes that a guardianship which terminates in this way, by the failure to file that form within two years, can be reinstated on application to the court. I think this provides some welcome relief to the effect of these provisions. Certainly anyone appointed as committee under the Mental Incompetency Act would not have contemplated these changes in status at the time the appointment was made, and I think it therefore appropriate that some relief be given to the automatic termination of the guardianship that comes into effect with the enactment of the SDA. This will also ensure that there is no break in the administration of the incapable individual's affairs and that the person who is appointed as committee will continue to manage the affairs and give some continuity to the individual who is no longer capable of dealing with his or her own affairs.
I was told that I should limit my remarks to 20 minutes and allow 10 minutes for questions. I earlier provided to Ms Bryce a written submission that I believe the committee members have a copy of; if not, I can certainly make those available. I welcome any comments or questions that any of you have.
Mr John L. Parker (York East): Actually, I was enjoying listening to your words; I didn't want to cut you short just so we could ask questions. Thank you very much for your very helpful comments and, frankly, your very supportive comments. We felt we had improved the provisions of the statutes, and it's very reassuring to have the comments of people who have worked with this stuff, who have to work with it every day, who work with clients who are struggling with it, to have your comments that tend to endorse our view that we have addressed those elements of the existing legislation that have caused trouble in practice and tried to make something that is more workable and more practical for people to use.
You made a comment about one of the provisions in the current bill that would allow children to act as witnesses for a power of attorney. Your recommendation is that maybe it would be best to remove that. I understood your argument that given that there's no longer the requirement of a witness to attest, to sign the attestation document, maybe that will relieve some of the concerns that have existed on the part of witnesses in the past and made them reluctant to act as witnesses, and therefore it may not be necessary to broaden the category of potential witnesses. I wonder if you could give us a little bit more commentary on that, give us a bit of your experience.
Ms Laidlaw: Sure. First of all, I'd like to say that I do agree with your comments. I think that, by and large, Bill 19 has done an excellent job in addressing what I find to be some of the more cumbersome and difficult aspects of the Substitute Decisions Act. I recognize certainly that there's a balancing act required in so far as the rights of the individual to self-determination are concerned versus the need for protection of vulnerable individuals. I really do think that Bill 19 addresses many of these concerns quite well.
In so far as the witnessing requirements are concerned, my difficulty with permitting a child of a grantor to act as a witness is that whether or not there's an actual situation of influence or impropriety, there might be the appearance of it. I think you're quite right in characterizing my comments as meaning that there ought not to be the need to broaden the category further if the attestation requirement is gone. But my difficulty is that I very often see situations where elderly parents are subject to influence by their children; not always undue influence, but sadly, undue influence very often. I think this gives rise to perhaps a greater opportunity to allow children to manipulate their parents.
The example that I gave in my written submission was that you could very easily envisage a situation in which perhaps a power of attorney is given to one child by a parent, encouraged by and witnessed by two other children, in a situation which is orchestrated by all three of them as a means of gaining access to the parent's assets and control over the parent's assets. It may seem like a silly example, but in my experience it's not. These things do happen, sadly all too often. I think it would just allow them to happen that much more easily if a child of a grantor is allowed to witness.
Mr Michael A. Brown (Algoma-Manitoulin): This is certainly a thorough and well-documented brief and we certainly appreciate it, because having practitioners come in here and give us some practical knowledge of the real world as far as how this really works is concerned is something we can certainly appreciate.
I too share some interest in your second point where you're talking about the witnessing by children. We've heard some contrary arguments by some other people in the legal community saying this is no big deal. Could you help me a little bit more with why eliminating the child in this or making sure the child is not able to witness the document is really an improvement? We have heard that in many cases it's very difficult to find somebody other than the child to witness the document. Have you experienced that problem where it's hard to find someone else other than one of the children?
Ms Laidlaw: No, I definitely haven't. I've experienced the problem that it's difficult to find a second witness under the existing regime because of the obligation that people interpret as being imposed on the witnesses to satisfy themselves. If someone who is not familiar with the individual is asked to act as witness, there's the concern that he or she might not be capable of forming the opinion as to the person's ability to give the power of attorney. A child could certainly do so. A child would have the knowledge of the parent that perhaps even a solicitor wouldn't have and would be able to make that assessment quite readily. But I have not encountered a situation in which the only other available witness would be a child. I should think that with the attestation requirements gone, it would be very simple to get a neighbour, for example; someone in the same building, for example; someone in the same residence, if it's a nursing facility or a home for the aged, to assist in that regard if the obligation no longer exists to form this opinion. I think it would be very rare where only a child would be available to witness.
Mr Michael Brown: As I think about this, it seems to me that whenever you're talking about witnessing a document, the person who's actually signing the document has a great deal of control about who will be witnessing the document. Therefore, in my view anyway, there's always some opportunity for some kind of coercion or something going on.
0930
Ms Laidlaw: There always is; I agree with that. I think that has been addressed, to a great extent in my view, by requiring two witnesses, which the SDA introduced. Prior to that, as you know, under the Powers of Attorney Act, the requirement was that there be only one witness, so I think some protection has already been given by virtue of the fact that now two witnesses are required.
I agree with you that the donor of the powers sometimes has most control over who witnesses, but I don't see the distinction between a power of attorney and a will and I think it's very rare that an individual would have a child witness a will, primarily because a child is usually contemplated under a parent's will and witnessing by that child would revoke any benefit to that individual. So I don't see a difficulty in that situation and by extension, there ought not to be a difficulty in the situation of a power of attorney either.
Mrs Marion Boyd (London Centre): Thank you very much for a very cogent critique of the bill and I really appreciate some of the things you say. For example, in your section 4 in your written brief where you're talking about the definition of "will" being more defined, I certainly agree with that. I think it would be much more helpful to spell that all out because certainly, particularly to the extent of codicils, they often form a very important part of wills, don't they?
Ms Laidlaw: Absolutely.
Mrs Boyd: And it is important to do that. I wonder, in terms of wills, there's sometimes a memorandum as well. Would that cover a memorandum, for example, outlining specific items to be left to specific people?
Ms Laidlaw: I think that's an excellent question and, frankly, the definition that is set out in the Succession Law Reform Act that I've recommended be adopted in the SDA, might not cover a memorandum, but I think it would be appropriate for it to do so. Certainly, a memorandum can be incorporated by reference into a will, in which case it actually forms part of the will and in that event, I believe it would be covered by the definition.
Mrs Boyd: So if they say, for example, "or items detailed in an attached memorandum," that would do it.
Ms Laidlaw: Exactly. That incorporates it by reference and makes it part of the will. However, people also very often have what we call a precatory memorandum, which is not binding, but it is an expression of intention, often with respect to the disposition of certain household goods and personal effects. I think the intent of the provision is to allow the donor access to as much information as possible, with respect to the individual's intentions as to the disposition of property. If that is the case, then I think it would be appropriate to include even a precatory memorandum in that definition.
Mrs Boyd: Can I just ask you, if the wording of the section on the witness attestation provided, as you say, the mere absence of belief to the contrary, do you think the attestation would be appropriate? We have had many people in front of us, particularly from the health consumer population, who really believe very strongly that there needs to be some way to protect a person against people who have them sign a power of attorney when they're not capable.
Ms Laidlaw: I have some difficulty with that because I'm not sure how much protection that gives specifying that the mere absence of any indication that the person is not capable is sufficient. I would hope that no one would witness a power of attorney or a will if there were any suspicion at all that the person was not capable of giving it. Certainly, as I indicated before, that's a professional obligation on myself and on any other solicitor, but as far as a lay witness is concerned, I would hope they wouldn't do it. Now maybe the concern expressed to you arises because people might not be aware of that unless it is specified, and if that seems to be the concern that's being expressed, perhaps that is the compromise point.
Mrs Boyd: Thank you very much,
The Chair: Thank you, Ms Laidlaw, for your most learned brief.
TORONTO HOSPITAL
The Chair: Our next submission will be the Toronto Hospital. I'd like to take this opportunity, on behalf of the committee, to welcome the learned member Gary Fox of Prince Edward-Lennox-South Hastings riding. I think it's the riding with the longest name, is it not, Mr Fox?
Mr Gary Fox (Prince Edward-Lennox-South Hastings): The second one.
The Chair: The second?
Good morning. Welcome.You have one half-hour, which includes questions.
Ms Margaret Keatings: Thank you very much and thank you for giving us the opportunity to present to you this morning. My name is Margaret Keatings and I'm the nursing director for education and research at the Toronto Hospital. Joining me today is Dr Neil Lazar; Neil is a member of the department of medicine at the University of Toronto and the Toronto Hospital. Both Neil and I are co-chairs of the hospital's clinical ethics committee and we are both members of the Joint Centre for Bioethics.
This morning, given its particular significance to us at the Toronto Hospital, we'd like to place the major emphasis of our presentation on the revisions to the Consent to Treatment Act and essentially the proposed Health Care Consent Act. However, we do wish to make one brief comment with respect to the Substitute Decisions Act.
Overall, I'd like to say that we and our colleagues strongly support the changes to these laws and we were really happy to see the amendments to the legislation.
With respect to the Substitute Decisions Act, we are pleased to see that the requirement that a witness have no reason to believe the grantor to be incapable of giving the power of attorney for personal care has been removed. This requirement caused great reluctance on the part of our staff to witness a power of attorney for personal care, since they were concerned about their liability if the patient was later proven to be capable and this posed many difficulties for us at times. Many of our patients who are acutely ill are anxious to have such a document completed and finding the required witnesses in an urgent situation was sometimes problematic.
The feedback we've obtained so far from our colleagues support the amendments in the proposed Health Care Consent Act and we'd like to identify those amendments of particular significance to patient care in our facility.
Foremost, we are supportive of the principles that underlie the objectives of the act which recognize the significant role of the family and foster "communication and understanding between health practitioners and their patients or clients." We see these as important principles that reinforce the nature of the professional patient relationship.
We support the amendment to exclude treatments from the act that in particular circumstances pose little or no risk of harm to patients. We're aware that some of our other colleagues may wish further definition in this regard, but we believe that this is best left to the judgement of an educated health care provider and based on the particular needs of a patient within a particular context.
The previous legislation with respect to consent for a plan of treatment was confusing to our multidisciplinary teams. The amendments clarify this and we're pleased to see it clearly articulated that one member of the team may obtain consent for the plan on behalf of other members of the team or their colleagues. It is particularly helpful for many of the patients we serve that consent may be given for a plan or course of treatment that may continue from one institution to another or from one environment to another. This did pose difficulties for us previously.
The proposed legislation will improve patient care in at least two other areas. Presently, the public guardian and trustee is reluctant to consent to a plan of treatment on behalf of an incapable patient if that plan of treatment includes withholding or withdrawing treatment. The definition of plan of treatment should also alleviate this problem.
Also, the legislation allows for applications to the Consent and Capacity Review Board by a health care provider. Previously, health care providers had no apparent recourse when they felt that the substitute decision-maker was not acting according to the previously expressed wishes of the patient or in the patient's best interest.
For the remainder of the presentation I'd like to focus on the issue of rights advice.
We understand that there has been some discussion re the reintroduction of a mandatory requirement for health care providers to give rights advice to patients who have been found incapable of consenting to a specific treatment or plan of care. We have serious concerns that mandating rights advice in legislation will pose ethical and therapeutic problems in some cases.
Within the context of professional practice and the delivery of health care we must consider rights advice framed within the context of ethical clinical practice. This practice is guided already by a set of principles which in turn support the clinical-ethical decision-making framework within which we work. We deal daily with very difficult ethical dilemmas and must, together with our patients and their families, make some difficult choices and sometimes these actions are not always that clear cut. The best actions are not always that clear.
There's no question that health providers support the respect for and protection of patient rights. Providing mandatory rights advice with respect to incapacity and the patient's right to appeal, however, will not always accomplish that goal. In many cases, it will simply undermine the trusting relationship that we have with our patients. In other cases, it may lead to interference with other significant rights of patients, such as the right to be protected from harm. In some situations it may be non-therapeutic and also harmful to mandate this particular approach.
0940
I'll just illustrate by sharing with you a case that came up recently. It involved an 81-year-old woman who was in the terminal phase of cancer of the colon. She was demonstrating symptoms suggesting that the cancer had spread to her brain. The woman was well-known to health care providers since they'd been providing care to her for approximately four years. She had a very supportive family, a husband and a daughter. They were around to provide her support and care for her in the home. Recently, though she continued to be oriented to time and place and recognized the other health care professionals around her and other family, she had this fixed delusion that evolved as a result of the metastases around her husband and her daughter. She firmly believed that they were two strangers that she actually had two other names for. They were holding her captive and they were attempting to poison her food. Other family members and caregivers tried to reinforce reality as best they could and tried to reassure the patient that she was being well protected.
It is reasonable to assume that in this delusional state she would react with fear and panic if given rights advice. Further, giving rights advice might reinforce or feed her delusion; she would very likely request an appeal and serious delays in therapy might result.
As you're aware, the legislation is very much based on the principle of autonomy which recognizes that a capable and competent individual is free to determine and act in accordance with a plan chosen by himself or herself. Other equally important ethical principles, such as beneficence, non-maleficence, that we as care providers must consider, at times may compete with the principle of autonomy, as suggested in our case. Although this principle has strong value in North American society, our patient and the client base is made up of many diverse cultural and religious groups who may place a strong emphasis on some of the competing principles. We as health care professionals must respect those values and beliefs. Therefore, mandatory rights advice may result in culturally insensitive care.
As an alternative to mandated rights advice in legislation, we suggest that each institution establish policies or guidelines that govern actions to be taken to protect the rights of their incapable patients. Internal multidisciplinary management teams are best situated to identify the problem cases, those where significant concerns are raised either by the incapable patient, their substitute decision-maker or someone else in the health care team.
Legislation requires the rule be enforced in every case, policies and guidelines are more flexible and outcomes can be monitored through audits and quality assurance mechanisms. In fact, through legislation perhaps health care facilities could be mandated to introduce such policies as I believe is already done with respect to policies around organ donation.
Further, we believe that all health care institutions should have a patient bill of rights that is widely visible throughout the institution, posted on walls and included in patient handbooks.
Underlying the recommendation to legislate mandatory rights advice is a concern that patient rights may not always be protected. We share that concern, but believe the solution is education, peer review and quality audits. Health care professionals have become much more sensitive to these issues over the years as a result of greater emphasis on ethics.
There are many complex dynamics involved in dealing with ill, vulnerable patients. Almost all health care professionals do take seriously their role in caring for, supporting and protecting these patients. Forcing us through legislation to give rights advice to every incapable patient introduces an unnecessary intrusion into this caring, trusting relationship. It has the potential to suggest that rather than caring for them as people, we are introducing an adversarial tone to that relationship. Legislating a universal rule requires that all people are treated alike. Some people need and want to be treated differently. The establishment of institutional policies with principles and guidelines for providers to apply in a particular context would, we believe, have greater potential for protecting the rights of all the individual patients we serve.
That's the end of our formal presentation. Both Dr Lazar and myself would be happy to respond to any questions or comments.
Mr David Ramsay (Timiskaming): Thank you very much for your presentation. You really concentrated on an area of the bill that has caused a lot of debate among the different presenters and certainly is giving us a lot of cause for thought around the committee, I think, in all parties.
My gut instinct tells me that I would really like to see some sort of rights advice mandatory, but I think I would want to avoid too strictly laying out how it's to be given, because I think that's where we really need to rely on the doctor-patient relationship, how that doctor feels she should deal with her patient in giving that. You've given one example, and we've heard many different examples, of people in various kinds of incapacity who might have difficulty understanding this.
I am very concerned that we would leave it up to each institution in designing their own policy, whether or in what way they would give rights advice. What I would like to see is something mandatory about rights advice be given, but allow the policies to be developed by the institutions, maybe by the colleges, and I know many of them have guidelines. In any trusting relationship, I think it has to do with the sharing of information, and I would want to know what all the information is and what my rights are. That would certainly reinforce that trust. I'll stop there and give you an opportunity to comment on that a bit, if you like.
Ms Keatings: I find it interesting that the major focus is on rights advice with respect to this issue when patients have a lot of other rights in a hospital that have to be protected as well and we have a responsibility also for doing that. I wonder whether a way around it might be to introduce into the legislation the requirement that patients are aware of who is consenting on their behalf. If we have any concerns expressed that the patient is not happy with that or there's a reaction, then we will ensure that they are aware of their right to appeal.
Maybe that kind of provision would allow for a little more flexibility rather than in all cases -- if it's even the one I described, if we had told this woman her daughter and husband were consenting for her, she would have reacted. None the less I guess we just have to work out on the outlying cases that ensure patients know what's going on. Neil might have a comment.
Mrs Elinor Caplan (Oriole): If I could, this is a concern and then you could respond to that. This is also a suggestion that I made yesterday as to an alternative approach. The concern we have, the reason we're dealing with this at this time, is that the legislation's before us. Also, hospitals are held accountable for those other rights that you referred to. This bill removes that accountability.
For anyone who makes an evaluation that someone cannot understand and appreciate and is therefore incapable and who decides to call in a decision-maker, there's no obligation to have that communication with the patient; there's no obligation to let the patient know of their right to object or appeal; and there's no obligation on the part of the decision-maker who is called in to inform the patient. Yet both the provider, the evaluator, and the decision-maker are free from any liability for the treatment that is then given. Ethically, I think something's wrong with that. What you want to do is promote, in a positive way, the communication.
One of the thoughts I had yesterday was that you could say that that liability protection is only there if they have satisfied themselves and noticed that that communication took place. It would be left to the colleges or the institutions to set out the protocols for how that would happen. I just don't think that ethically -- and this is what we're struggling with -- you can say there's no obligation to talk to anybody, tell them what's going on and what their rights are, make the assumption that they should know and then say you have no accountability for it.
0950
Ms Keatings: I understand what you're saying and I agree that there needs to be something to reinforce that accountability. Maybe it's just the tone of the rights advice, and as I mentioned, it should be that -- there are situations, for example, where we know that an incapable patient has made it clear to us, "Oh, don't talk to me. I get all confused. Talk to my daughter."
Mrs Caplan: That should be acceptable. The Mirandizing approach is bad, we all agree.
Ms Keatings: So maybe we should document that and be held accountable for the fact that we knew that. But to turn around and say, "We know you know but, by the way, we just wanted to make sure you knew we thought you were incapable," that's the problem we have with it. Sometimes it's harmful, it's upsetting.
Mr Rosario Marchese (Fort York): I want to continue with that line of thinking because, for the most part, we have accepted the fact that many have come in front of this committee saying, "There should be rights advice," and from an ethical point of view as it relates to consumers, we think that's important. But I realize the sensitivity around it, your sensitivity around it as well in terms of the way you've drafted this, because I think that you have a sense that people want that as well and how to do that in a way that protects everybody, I suppose. The example you give is a very good one in terms of the difficulties we would have around rights advice and the problems that would pose.
But would you agree to rights advice except in circumstances where you might certify or the doctor might certify that that would cause a serious problem? That example you gave would be a good one. If a doctor says, "This is the reasoning we attach to this and we feel that this is a problem to this person because of the circumstances," if you attach such certification to it, that would be all right. Would that be all right with you or the institution?
Ms Keatings: Perhaps Neil could respond to that as one who probably more regularly than I has to give it.
Dr Neil Lazar: I think providing exceptions to the rule will make it more flexible but will still pose a problem at the bedside. To get back to an earlier question which is really related to yours, I think the important right that we need to protect is the right of the incapable person to know who is going to be making choices for them. That's really the most important thing.
The route of appeal, the access to the Consent and Capacity Board are details that obviously are important but they are the clumsy ones, to be quite honest, at the bedside: to stand there and say: "You're not capable. This is your route of appeal if you choose to do so." What's easy at the bedside is to stand there and say, "This is the proposed therapy." Ask patients, even if you feel that they're incapable, about what their feelings are about that treatment and talk to them about who will ultimately be the decision-maker for them for that particular treatment.
So, in response, what I'm saying is that just providing an exception to a rule isn't necessarily going to solve the problem. The problem really is the clumsiness of advising them about where to go rather than the easiness of just communicating with them who it is that will be making choices for them.
Mr Marchese: I'm not entirely sure it's that complicated. I can see why it can be complicated for some, but I'm not sure that I agree with you.
You talk about a patient bill of rights and you talk about each institution coming up with their own policies or guidelines. Do you think those guidelines should be equal across the board or that they should be different for every institution? You talk about enforcement as well. Would enforcement happen all of the time? Would it be regularly looked at to make sure that these things happen or would it just happen when audits are done, if it happens at all?
Ms Keatings: I think what we were trying to suggest there is that if hospitals have policies or standards or guidelines and they're the generally accepted standards and they have good quality assurance problems or quality improvement programs, then through general audit and review, we can pick up on the problem areas. We can pick up on the problem areas through patient complaints, through patient requests. Many hospitals have community relations type offices or patient advocates. We can pick up on problems there. With more education and more awareness, then more health care professionals are aware of the standards and the principles. When they see their colleagues acting in a way that is substandard or is not protecting patient rights, they can deal with that and bring it forward.
Probably a lot of my colleagues will disagree with me, but I think there would be value in having a universal set of standards and a patient bill of rights provincially rather than leaving it up to an institution. In the patient bill of rights -- this was Neil's suggestion earlier -- you could in fact have a statement that said you have the right to know who's making treatment decisions for you if you're not capable of making these decisions for yourself. I don't believe they're in many bill of rights right now but they could be introduced.
Mr Parker: I'll just make one point, and I wanted to say thank you for your very good presentation this morning. To my knowledge, you're the first ones to coax out of my friends on the other side of the floor the begrudging concession that just possibly this isn't an easy question. Thank you very much for bringing that perspective to bear.
Mrs Caplan: That's bullshit.
Mrs Helen Johns (Huron): That's a hard act to follow. I just wanted to ask you some questions about --
Mrs Caplan: That is bullshit. That makes me really angry. That is absolutely not true, John, and if you want to make comments on the committee --
Mrs Boyd: I believe our rules --
Mrs Caplan: Absolutely. You're imputing motive and that kind of attribution is unparliamentary and it's unacceptable and it makes me damned mad.
The Chair: Excuse me, Mrs Caplan. I can understand that, but I don't think we have to use language of that kind.
Mrs Caplan: Well, call him to order and tell him he can't do that and then I'll withdraw.
The Chair: Mr Parker, continue.
Mrs Caplan: No, if he doesn't withdraw -- I'm telling you that until he does withdraw, I'm angry and I would demand an apology and he must, because he has imputed motive and I request you, Chair, to do that.
Mr Parker: Frankly, Elinor, I wasn't --
Interjection.
The Chair: Excuse me, Mrs Caplan, you've made a request.
Mrs Caplan: Yes, I have.
The Chair: Mr Parker, do you have anything to say?
Mr Parker: Frankly, my comment wasn't directed at Mrs Caplan, but I'm happy to withdraw the remark if it causes offence.
The Chair: Thank you. Please proceed. And I assume Mrs Caplan withdraws the language.
Mrs Caplan: Absolutely.
Mrs Johns: I'm sorry for the time that we've taken from you. I just want to talk a little bit more about the rights advice, obviously, because that's your focus. I wanted to know two things. Your presentation in some ways is very much like Dr Singer's on Tuesday in the thought that there should be a responsibility taken on the shoulders of the professionals to deal with this issue and to do it in a way that informs the person and takes into effect what they need to hear to be able to make good decisions or have their substitute decision-makers make good decisions.
One of the things I was interested in was your response to the most recent question about provincially based guidelines. My concern when I heard you answer that was that I would think the guidelines doctors would follow would be different than nurses, would be different than physiotherapists, not because they're not all handling people who may need rights advice but from a standpoint more that there may be different issues or things that come into effect because of different areas they work in with the patient. From my standpoint, was it a provincially legislated guideline or were you thinking about legislation from CPSO versus the nurses' association versus the physiotherapists'? Can you comment on that?
The other thing I wanted to know about was, this is the first time we've heard that it should be mandated by the institution as opposed to a professional body. I wanted you to talk about what was the thought process that was different between that.
Ms Keatings: With respect to your first question, I don't see why different professionals have to operate from a different set of guidelines, since they're essentially going to be principle-based and you would apply them to any context or any situation. A lot of the issues we face are similar; they're not dissimilar.
In relation to legislating those guidelines or such a policy, I'm not sure. I haven't really thought that through. Perhaps key groups or key professional organizations could work together on their establishment, such as the Canadian Nurses Association and the Canadian Medical Association and others have done with respect to the joint statement on the terminally ill. That's something that could be done. That's something that could be discussed by various groups.
Your last question was?
Mrs Johns: With respect to the institutions versus the profession.
1000
Ms Keatings: Right. Okay. Perhaps that comes from the fact that we co-chair the hospital's clinical ethics committee and a lot of the work we do is the establishment of policies that deal with ethical issues and important patient care issues. So it's not a new thing. Many hospitals have such committees and they have policies around withdrawing and withholding treatment, decisions around no CPR, policies around confidentiality, guidelines for making decisions. It's not a new thing.
Mrs Johns: I can see where you're coming from now that you've clarified that. I can see that because you're in a hospital, you probably have the ability to do that. If it was a smaller facility, for example, those people would have to be regulated by some other method, obviously, and they may not have the resources or the inclination to go forward. I now understand better what you're saying.
Ms Keatings: But a few years ago there was some legislation around mandating institutions to have policies around organ donation, and then there was assistance given to all the facilities around how those policies could be developed.
The Chair: Thank you for your presentation.
Mrs Johns: I have a question from the Chair, if I could, to these presenters. It'll just take a minute.
Mrs Boyd: I'm sure he'll allow it.
Mrs Johns: An 81-year-old person has terminal phase. A serious delay in therapy might result. What therapy would you do to an 81-year-old who had terminal cancer?
The Chair: This is a serious question, I'm sorry.
Mrs Boyd: Sure it is.
Dr Lazar: In this particular case, the therapy that might be considered could be radiation therapy, for relief of some of these delusional symptoms. That's quite possible.
The Chair: Thank you very much.
W. GLEN HOW AND ASSOCIATES
The Chair: Our clerk advises me that Ms Jane Doe has made an appointment on another day and then cancelled it and probably will not be here today. She was scheduled for 10 am. Fortunately, Mr John Burns of Glen How and Associates is here early and has agreed to proceed. Welcome, Mr Burns.
Mr John Burns: Thank you very much, Mr Chairman. It promises to be a lively session, which is always good for me as a counsel.
I'm a barrister and solicitor with W. Glen How and Associates, and my associate, Mr Don Kirkland, has been intimately involved with me on some of these issues. He brings something to my work that I find very useful: He's not a lawyer. There's a certain clarity of thinking that sometimes non-lawyers bring. My apologies to any barristers among the panel.
My senior is about 53 years to the bar, and that's usually his opening statement. Right now he's in Singapore defending Jehovah's Witnesses who are being prosecuted for doing something that in Ontario is considered quite acceptable. That's prayer and Bible study. Fortunately, in Ontario we've developed our rights recognition far beyond certain other countries that still remain part of the Commonwealth.
I've provided you a written statement which summarizes the presentation. I might just tell you as an outset to introducing myself our interest in this issue.
W. Glen How and Associates has long represented Jehovah's Witnesses. Mr How has been at the bar in Ontario since 1943 and I've been associated with him since 1979. We have often represented patients who want medical treatment -- adults, minors and parents -- but they want alternatives to a treatment that you probably well know they find objectionable on a religious basis, and that is blood transfusions, although, as an aside, with the Krever inquiry moving ahead so quickly, it appears there are more members of the public who are also interested in alternatives to blood products for medical reasons alone. Some of these cases I note on page 1.
The first case is Malette v Shulman, and that was the first case in Canada, to my knowledge, where the Court of Appeal of Ontario recognized under common law that an advance directive must be followed by a physician with an unconscious patient. This was a case of a woman who had refused blood products and carried on her person an advance directive to that effect.
Also there's a case involving a young 12-year-old at Hospital for Sick Children in Toronto, L.D.K. Her name is Lisa. That also was a decision where a provincial court judge protected the right of a 12-year-old to refuse blood products and choose other treatment on the basis of her religious conscience.
More recently, there is a case from the Supreme Court of Canada, and I've provided a short reference to that case. In this case, the Supreme Court of Canada, by five justices, the opinion of Justice La Forest, recognized that there may be constitutional protection for a mature minor where they make medical choices based on their religious conscience.
I was pleased to see that in the governing principles of this new piece of legislation, it starts off in clause 1(a) that its purpose is "to provide rules with respect to consent to treatment that apply consistently in all settings."
I have been involved in a number of controversial situations. Patients who are sick need to know what the principles are and they need to know what their rights are and what the decisions are that have been made against them. It's just elementary fairness. Doctors also need to know what the principles are. It's a balance both ways. Physicians want to be there to treat, and if we have inconsistent rules, you will find us in confrontation and unfortunately I'm called upon and we're in court. I'll tell you, ladies and gentlemen, the last place that any patient needs to be in is in the middle of a court battle, and that frequently happens, I'm sorry to say.
But whether or not a person has a religious objection, the principle that I think this legislation really is seeking to advance is that nicely summarized by Mr Justice Robins of the Court of Appeal of Ontario, and I've put it out there, "The right to determine what shall be done with one's own body is a fundamental right in our society." I think, no matter what your political or religious persuasions are, everybody is agreed on that.
On page 2, I've set out three points. There are good portions to this legislation, but I feel there's a need for some constructive adjustments, and we have set out there three points that we're recommending. I'll go through them in order.
First, the legislation should not discriminate against mature minors. I would direct your attention to the principles outlined in subclause 1(c)(iii), because it states the principle, but if you notice, in 1(c)(iii) it's says it's limited to people who are "capable and after attaining 16 years of age." That really is not consistent with the common law, and I believe not consistent with subsections 3(2) and (3), which try to urge that there is a presumption of capacity.
I have set out cases, three of them, from Canada that make it clear the common law does recognize that capacity is the test for consent, not an arbitrary age.
One case there comes from the Court of Appeal of New Brunswick. It's a case called Joshua Walker. He was 15 years of age. He did not want blood products. The hospital went to court, of interest, under the Medical Consent of Minors Act, for a declaration that he was mature, and the judge took the position that there is no right for a minor less than 16 to refuse medical treatment, notwithstanding the medical opinion that this young person was mature. We had to immediately appeal to the Court of Appeal, which reversed that decision, so the young man could make his decision.
1010
Similarly, another case on page 3 from Newfoundland: Here the director of child welfare applied for a wardship order. I might mention this came on in 45 minutes' notice to a counsel who was there in Newfoundland and able to quickly appear, but it gives you some sense of the frustration when this matter went to court. The court there again took the position that he was a mature minor and he had the right to make his own choice.
There was a human side to this. If you notice on page 3, Justice Wells of the Newfoundland Supreme Court made the point that it's not a question of whether other people agree or disagree with his belief, "The point is that it is his belief, and it is a correct belief for him." That summarizes the fundamental point that I made at the outset. We all should be able to make these choices.
Finally, the case of Lisa, or L.D.K. involving a 12-year-old: In that case, in 1985, blood was given, contrary to her objections. The matter went to a family court judge, who dismissed the application of the children's aid society and condemned, in that case, the action taken to give this treatment without consent.
I set those out because I think it's pretty clear: The law in Canada -- common law in Canada -- recognizes that a mature minor must be given the freedom to make choices, and as I've mentioned, the Supreme Court of Canada has suggested that this may also be a constitutional right.
That right, under the Consent to Treatment Act of 1992, was given express recognition in clause 9(13)(b) and also in the regulation. But that is not what we find in the statement of principles in subclause 1(c)(iii). It specifically says "16 years of age".
So I've set out four recommendations, and if anyone wants to interrupt me with questions at the end of certain sections of my presentation, feel free.
First of all, subclause 1(c)(iii) should be changed by eliminating the words "and after attaining 16 years of age" to read "...expressed by persons while capable, be adhered to;" Make the test consistently be one of capacity.
Section 24, which is the provision that allows a doctor to go ahead in an emergency, would be read to not permit a mature minor to have an advance directive and the doctor could go ahead notwithstanding that advance directive because he's 15. Again, the suggestion is that the test should be one of capacity. So if you have a 15-year-old with evidence that he or she is a mature minor and has documentation to that effect, why should they not be permitted to rely on the same provision that a 16-year-old or a 17-year-old could?
Also, paragraphs 19(1)1 and 19(1)2 again repeat this 16-year cutoff. I would respectfully submit it should be eliminated.
Finally, bullet point 4, and this is something to add under miscellaneous, part IV, "The right of a minor asserting capacity to apply to the CCB applies notwithstanding the provisions of any other statutes."
Now, what I have in mind there is a conflict that you want to avoid with the Child and Family Services Act. I've recently been involved with a case that is still before the courts where the 13 1/2-year-old was not told about the right to appeal to the board, a hearing took place before a provincial court judge where she was not heard, a wardship order was made, she then appealed to the board and the board declined because the provincial court was involved. Counsel then, who asked me to assist him, appealed the case to the Ontario Court (General Division), who then said, "The board shouldn't hear it and I shouldn't hear it," and sent it back down to the provincial court.
In the meantime, this young woman was continuing to get treatment that she objected to, including pulling out IVs, and by the time we could get a provincial court judge to hear it, then the children's aid society said, "We don't think we need any more wardship order." So now appeals are going forward and she's extremely frustrated because all this took place and nobody heard her.
Why should a mature minor be deprived of going to the board? It can convene quickly, it has people who are specialized in determining capacity and you have a statute that sets it out. Provincial court judges, under their statute, have no test or jurisdiction to determine legal capacity. I think mature minors should have access to the board. That provision would permit that. That's the first set of recommendations.
The second is this: The legislation must ensure that a patient asserting capacity but found to be incapable by a physician is informed of his or her right to appeal that finding to the Ontario Consent and Capacity Board. I think I'm repeating something that I heard discussed just prior to my coming in. The act doesn't clearly provide for it. I think it should. Anyone who has a decision made against them adverse to their interests should be told. It's a fundamental principle of fairness in law. And they should be told where you can go if they want to seek a remedy.
On page 6 I've set out a provision that I would recommend be added under "Capacity."
"Where a health practitioner finds that a person asserting capacity is incapable with respect to the treatment, the health practitioner shall immediately inform the person, or the person's parent or other person who is lawfully entitled to give or refuse consent to the treatment, of the finding of incapacity and that the person has a right to apply to the board for review of the finding."
It's simple; it's not complicated; it should be done.
The third recommendation refers to section 21. Here's my concern: There's an adage that if something can be misunderstood, it will be misunderstood. Read section 21:
"Authority to consent to a treatment on an incapable person's behalf includes authority to consent to another treatment that is necessary and ancillary to the treatment, even if the incapable person is capable with respect to the necessary and ancillary treatment."
My concern is that this section could conflict with the clear right of an advance directive as spelled out in subsections 4(2) and 19(1). Let me give you a factual situation that illustrates my point. In Malette v Shulman, Mrs Malette, one of Jehovah's Witnesses, was admitted to an emergency ward of a hospital following a motor vehicle accident. She had on her an advance directive: "No blood under any circumstance." Her husband was killed automatically in that accident, unfortunately. She was unconscious. We know the courts upheld the advance directive and found the doctor liable for damages and battery.
Now change the facts. Mrs Malette is one of Jehovah's Witnesses; her husband is not. He disagrees with her decision and he's alive; he's not injured in the accident. Someone approaches him for authority under subsection 18(4). Would he have authority to consent to the blood products, given the broad language of section 21? He shouldn't have. Advance directive says that binds matters. But read section 21. I fear that the broad language in that could raise a conflict. As I say, if something can be misunderstood, it will be misunderstood, and we wouldn't want to be back in a position of now testing Malette and Shulman all over again. No patient wants it and the doctor doesn't want it.
So my suggestion, on page 7, would be very simple. Just repeat a basic principle: "Authority to consent does not include authority to override a capable person's advance directive." Add it to the end of that section and it would avoid the problem.
Those are my submissions. Thank you for listening. Myself and Mr Kirkland would entertain with enthusiasm any questions you have.
1020
Mrs Boyd: Thank you for your presentation. We certainly have heard from others, both lawyers and various lobby groups, about in fact reinforcing the age of 16 and trying to in fact take away the capability of mature young people. So it is very interesting to see the other side, and the case law that you have provided for the committee is very, very useful, because of course the former government, in deciding that there should not be an age, went through all these cases. We agree that in fact the precedents have been set that would prevent an age from being there. So it's good to have this.
I think one of the issues that is very clear to the committee is that in trying to do legislation like this, the effort to try and balance out the competing interests, particularly of different religious groups, is very difficult. I think you can appreciate that as well.
One of the issues that you've raised, though, is this issue of extending this in these other sections. It seems only logical, frankly, to do so if the override is that capable people get an opportunity to give advance directions, and certainly that's the principle that's set out in the act. I think the real concern that will be expressed is the effort to try and balance these things out.
You've had lots of experience with physicians. Is it your experience that when professional health providers are faced with situations, they are very likely not to pay very much attention to a capable, mature young person?
Mr Burns: My experience is that there are three types of physicians, to make a broad generalization. There are those who are determined to do it their way no matter what. There are those who are men of great concern for their patient and they are willing to go the full limit to respect the patient. The vast majority are in between. They go whichever way the wind blows and liability hangs over their heads.
In the recent case I've just mentioned to you, the CMPA was involved right from the start. In fact, before the girl was ever told about what was going on, counsel for the CMPA was advising the doctor. I'm not against that, but there is that fear. We need to have rules in this legislation that are clear so that we as counsel, whether advising the patient or the doctor, give them some consistent direction, so the bottom line is adhered to. Is this minor capable? Then respect their choice and their values.
Mrs Boyd: Because one of the issues here -- and you heard some of it -- is that we've had the reluctance of professional health givers to take the responsibility, the accountability of in fact informing people that they're incapable, informing them of their rights of appeal. Some of those reasons may be valid from their perspective, but when it comes to this sort of an issue, it really raises this spectre of whether or not this will be applied, particularly because this bill holds physicians, holds health care providers not liable for anything that occurs as long as they are following the Health Care Consent Act.
So these issues that you've raised in your recommendations, they would have no obligation, and that liability hanging over their heads wouldn't impress them because they would be saved from liability because they would be following the letter of the act.
Mr Burns: Not necessarily. They're state actors if they're acting pursuant to a statute and they may be liable under a constitutional tort. It's a different area of law. It hasn't been developed in Canada; it has in the United States. But I don't think liability should be their concern. The doctors I've worked with have no problem in being honest with their patients, being ethical with their patients and getting good results with their patients. If doctors would think in terms of just being honest -- I'm honest with my clients when I tell them, "I think that is a bad move legally and I'm going to decline to take it." That's just being honest. If it's difficult, then learn some communication skills on how to simply be honest with your patient.
Mrs Boyd: So you would think that any kind of sanction against medical professionals who were not being honest with their patients in fact should come under their own professional self-governing colleges rather than under the legislation in some way?
Mr Burns: My experience with the self-governing colleges over several years -- and I have to hark back to Mr How's experience -- has been disappointing. However, it is a check. We found that after Malette and Shulman came down as a decision, across Canada, when Jehovah's Witnesses showed up with a "No blood" card, as it's sometimes called, everybody paid attention. Why? The court spoke; the CMPA listened. Liability was the driving force.
Mr Garry J. Guzzo (Ottawa-Rideau): I first of all want to thank you for the professionalism of the presentation. I think when the members of the committee have an opportunity to assess the principles involved that you have brought forward and reflect upon them and apply them to some of the other presentations that we've heard, the benefit of your brief is going to be totally appreciated.
I speak as a former family court judge, 11 years of doing the type of work that you have outlined here. I want to tell you that contrary to what you might think from reading some of my decisions, I have been an admirer of the professionalism and the positive approach that has been adopted by your associate over the lengthy period of time that he has practised in his field, particularly, I think it must be remembered, at a time when human rights were not appreciated and accepted and when it was not popular to do the type of thing that the people in your position can do today without criticism.
There are two points that I want to drive home, the first one very seriously. I think it has to be understood that the argument you make in the first instance with regard to a mature minor is not necessarily in the best interests of your overall clientele. Many times there would be a parent with the religious beliefs attempting to impose them on a child, as opposed to the child being in a position to express their own view. In that case, that would be in fact contrary to what one might consider to be your own position.
Mr Burns: Our position is, as advanced by the Supreme Court of Canada -- and I feel Justice La Forest's opinion sets out what we wanted -- where you're dealing with an infant that cannot make its own decision and parents want a particular treatment and the doctor disagrees, then you need a procedure in place of fairness to the parents so they can advance their requests for alternatives to blood. That case established that parents have a constitutional right. The Child Welfare Act, Justice La Forest found, met the procedural requirements. But with a mature minor it's different. If a mature minor said, "I want a blood transfusion," and the parents didn't, our position would be that it's the minor's choice, it's not the parents'.
Mr Guzzo: What I'm saying is that I commend you for that, because it has to be accepted that it could be termed, I suppose, contrary to the best interests. I commend you for that.
Mr Burns: Actually, it's not contrary. Jehovah's Witnesses do not baptize children. It's their position that the minor must make their own choice.
Mr Guzzo: I appreciate that. I didn't want to get into the religious aspects of it, but I think it underlines the fairness of your proposal.
The other point I want to make for the benefit of the committee is that in my 11 years on the bench there was one unique aspect, and that is that never once did I ever see either the cases that I handled, maybe a couple of dozen, or the others of my confrères -- we never dealt with one of those between 9 and 5 on Monday to Friday. I'd ask the committee to consider that.
Mr Burns: Your experience is like mine. At 2 or 3 o'clock in the morning, the judge doesn't want to be there, nobody wants to be there. That's why in this past case, the counsel appointed by the court for this young girl was very frustrated, because after the order was made, he thought, "Let's go to the Consent and Capacity Review Board." It decides one issue, capacity, so when he got there, they said: "No, you can't. You go back to the family court." It unfortunately has ended up in snakes and ladders, but this young girl never got hurt as a result.
The board should be there. If there's one point I want to make and emphasize, it's let's keep the board open for mature minors who want that remedy.
Mrs Caplan: Thank you for an excellent brief. I think you've provided all the research the committee needs to deal with this issue that's been plaguing us. However, in point 2 on page 5, while I agree with you that "the legislation must ensure that a patient asserting capacity but found to be incapable by a physician is informed of his or right to appeal that finding to the Consent and Capacity Board," we've heard from a number of presenters that the notion of Mirandizing has created an atmosphere where the law will not be complied with.
I know what your reaction is to that, and I have the same one. My back goes up immediately. But in the desire to find a way to foster that kind of communication with an incentive as opposed to a model that would require enforcement, I've made the suggestion that perhaps the threat of liability is the place where you could accomplish that with an incentive. This legislation removes any liability when the treatment is given, and what I've been suggesting is that perhaps that's the place to insert the clause that says, "You only have protection from liability if you have communicated your finding that a person is unable to understand and appreciate and that they have the right of appeal, or if you're satisfied that the substitute understands." How do you feel about that?
Mr Burns: Well, it would be a check. I must say that I have sympathy for the doctors, because you're trying to build a relationship of trust without putting a gun to his head, and emphasis needs to be placed on communication skills. But I have to be honest. In my experience I have seen liability as a factor, as in Malette and Shulman, that does work. I also emphasize that if a doctor relied on the no-liability provisions of this statute but was found to be acting pursuant to this statute and yet violated a constitutional right, those sections could be struck down. If I were a counsel, there are ways to get around it.
But that shouldn't be the thrust. The thrust should be, get the doctors simply to be honest. I have a problem when I hear these discussions. Yes, it's difficult. There are many difficult things I have to tell my clients. For example, the honourable member over here mentioned one. I have to tell parents, "If your 15-year-old wants a blood transfusion, that's their choice." That's not an easy thing to say to devout parents who want their child to follow their religious views, but that's my responsibility as a counsel because we are balancing different interests and rights. Can't a doctor do the same simply because it's a good basis on which to build trust?
Mrs Caplan: How do you build that in here so it's an incentive and not something that will be ignored and will require enforcement? We don't have a legislative penalty in this and we have taken away all litigation as an accountability option.
Mr Don Kirkland: I realize there isn't a legislative penalty in here, but one of the recommendations requiring that the doctor, who after all, according to the legislation, may make the decision -- someone decides the patient is incapable. If the doctor has that responsibility and authority, why does he or she not also have the responsibility to inform? I'm not a lawyer, but as Mr Burns said, if the legislation requires that the physician ensure that the patient or responsible decision-maker is informed but chooses not to do that, the doctor isn't following the provisions of the statute. I agree with Mr Burns. Our approach is not to come in with a heavy stick. Still, there has to be some accountability to inform the patient.
Mr Burns: I have to be honest. In my experience, the liability factor has been one that has changed practice. I wish it did not. I wish it could be built solely on trust.
Mrs Caplan: If there is no statutory obligation to inform, you believe they should not have freedom from liability.
Mr Burns: Based on my experience.
The Chair: Thank you, Mr Kirkland and Mr Burns, for your presentation.
We don't have our next witness here, our 11 o'clock witness. We'll recess until 11.
The committee recessed from 1035 to 1102.
MICHAEL GORDON
The Chair: Our last submission for the morning will be made by the Baycrest Centre for Geriatrics, Dr Michael Gordon.
Dr Michael Gordon: Actually, I'm here, I hope or believe, not representing just Baycrest Centre. That's where my main site of work is, but I hope I'm representing a perspective on those who care for the elderly. My formal position includes Baycrest Centre, the University of Toronto, Mount Sinai Hospital, the regional geriatric program, and the Ontario Medical Association's committee on long-term care, so I hope I can bring a perspective that's shared among many people who care for the elderly. The formal part of my presentation, which has been handed out, I reviewed with a number of colleagues in the social services and the patient representative, or whatever we call them now, the ombudsperson, to try to get a perspective that wasn't purely a medical perspective.
First, I want to commend the government for modifying the previous legislation and repealing the Advocacy Act. The previous legislation, though I'm sure introduced with the best of intentions, resulted in procedures and practices which were overly cumbersome and in many ways interfered with smooth care provision activities and at times caused unnecessary tensions among patients, families and other health care providers and professionals. From the perspective of a geriatrician, I have observed among my colleagues and in the facilities in which I work an inordinate amount of time being expended on activities that did not add substantially to the wellbeing or safety of the patients for whom I care.
I'm on e-mail, and every evening I would have five e-mail questions about, "How do we do this and who do we call?" I thought, "It's just a learning process and people will get used to it," but I think at the end most of us felt -- and I have my own personal anecdotes which, if I have time, I can relate -- that clearly it was not adding to anybody's benefit but was cumbersome. So I really welcome the tenor of the changes.
There are just a few issues I and the colleagues I spoke to can identify in the newly proposed changes to the legislation that I believe should be reviewed again in order to further provide optimal care and protection to the recipients of our care efforts. I suspect that over time one fine-tunes any legislation and regulations as you see how they work.
(1) One of the issues is the meaning of "assessor" and his or her qualifications under the act. I know this is a difficult issue. We should define the assessor based on professional qualifications that are most likely to provide the knowledge base and clinical ability to make judgements about the capacity of a person. This should be part of a professional standard of, for example, physicians rather than limiting the role to those who have formally applied for and received such designation.
Under the previous legislation, I had all kinds of people ask if I would write letters of reference for them to become assessors. Some of them were very capable people, but I had never actually seen them work in that capacity. With physicians, certainly ones I have been involved in training, I can observe how they do something, but with many of the other people I would not be in any position to know what their standards and capabilities are. It should certainly be part of a professional standard, but those who have been trained as part of their profession to know how to do it should be able to do it.
(2) A physician should be able to defer to another, more experienced and expert physician the determination of capacity, or be able to arrange for a transfer of responsibility for such a determination in a way that will encourage physicians to ask for and receive advice, especially when the issue is particularly contentious or difficult.
If I understand correctly, some physicians were reluctant to take on the responsibility having to do with capacity if they weren't the attending physician. I think sometimes patients then fell through the cracks as to was actually going to take the lead in determining a person's capacity, especially where it was somewhat contentious, as in the case at Sunnybrook which, as we know, had a disastrous, tragic outcome. But many of us have seen other cases that were less traumatic but where the issue was the same.
(3) The definition of "treatment" should include the term no "material or unusual" risk, or, as I've underlined, no "reasonable and commonly acknowledged" risk as perceived in the best medical judgement of the acting physician. "Treatment" should also include something to the effect that there is good evidence to believe that the person agreed to such treatments in the past by the process of assent and there is no reason for the practitioner to believe the situation to have changed.
I put this in because very often people don't think of treatments as being ordinary things, yet they are, under the legislation. If I look at my own organization, people come for dental care, foot care, ear wax removal, and if for some reason those weren't included in the plan of treatment -- if you move into a home for the aged or something and somebody doesn't say, "By the way, if next year you have wax in your ears, will you agree -- " People don't think of it, so we have a whole process where the ears are looked at and if they're full of wax, you clean them without getting consent, because the assumption is that this is the kind of thing most people have agreed to all their lives, or that their toenails have to be cut, or ordinary dental care -- not dental surgery.
Our experience is that under the old legislation, people felt very constrained, and if you didn't have a consent for this ordinary activity, you started looking for a family member or a surrogate, and they're not always easy to find. If they're not readily available, you may end up not providing simple dental care for a weekend because on Friday you couldn't find someone, when you know that this person for 80 years had dental care and why would they suddenly not agree? In the tenor of what would be considered a plan of treatment, it should be inclusive for the ordinary, regular things that most people agree to and that have little in the way of unusual or material risk, whatever term you want to use.
(4) Now that the rights advisers have been removed from the legislative framework -- and I support the principle of that; I think it was an extra, unnecessary layer -- it would, however, be worth considering, perhaps in the regulations rather than in legislation, that all facilities designate a person or persons, such as designated social workers, who will have a role that ensures people under care of their rights under the legislation, so that a further level of advocacy will be ensured despite the elimination of that piece of legislation.
I use social workers only because, in my experience, most social workers feel a very strong advocacy role, even though it's not formally designated, towards their clients. But if there were in regulations something that made it mandatory for all long-term-care facilities, which I'm looking at as an example, to have a social worker designated so the role is an important role so they aren't in conflict, let's say, with the policies of the institution, so they could say, "Part of my role is to be an advocate and I'm responsible for that," I think we could achieve the same kind of protection that I know people from the advocacy group want, to make sure that people are not lost and, because they can't always express their own needs and rights, that they have somebody you can be sure looks out for them. Not every organization can designate a patient representative or ombudsperson, because that's a somewhat expensive undertaking.
1110
(5) In the sections dealing with emergency treatment, the concept of mental harm should be added to the concept of sustaining serious bodily harm, which is the way it's written. This is just to make sure that it's not interpreted too literally, because it doesn't acknowledge the importance of the effect of mental suffering and anguish on clinical care and outcomes of treatments. This is especially the case with older individuals who might be in a situation waiting for something to happen, where the anxiety and anguish can be even greater than the potential physical harm. I think just having it in there highlights it. Some could interpret "physical" as including that, because certainly in modern medicine we don't separate the mind and the body, but others might not, and having it designated assures that it will be considered an important issue.
(6) A plan of treatment for someone entering a long-term care facility on a permanent basis -- this follows up what I said earlier, but I've enlarged on it -- should include the concept of the ability to include the wide range of expected treatments for the conditions that exist at the time of admission and for the foreseeable repercussions of the conditions, as long as those treatments, as I said before, do not care an unusual or material risk or one that is not reasonably and commonly accepted. That way, a consent process does not have to be developed which includes treatment options which may not be inclusive and which may require excessive formal requests for simple treatments or changes in treatment like, as I said before, dental care, foot care, all the little things we all go through and the difficulties in contacting family members. At the time of admission, it should be understood and agreed to, or at least the option offered, for a wider-range consent to be provided by the patient or surrogate.
Likewise, for example -- and we've been through this recently with immunizations. We now know that all the major bodies that deal with this recommend yearly immunizations for influenza, a periodic for pneumonia and other things. That can be very difficult to get, and you may have only a window of opportunity. I think there should be a possibility for having a consent for immunizations, with the proper explanation, at the time of admission so that one doesn't yearly run around trying to get everybody involved, which can be very difficult.
I know that in the past they've in a sense abrogated the regulations to allow us to immunize people, because it's almost impossible to get consent and if we actually followed what was in the legislation previously without the ability to overcome it, we'd probably have massive outbreaks of very serious influenza because of the logistics. I think we should promote that however we can.
(7) The fact that it is no longer formally required by legislation to inform people of their incapacity does not remove the professional responsibility and ethical obligation of telling people the truth about their need for care and their inability to make decisions on their own behalf. There's a large body of literature, in the geriatric literature, about the importance of informing people. The real issue is not the fact of informing; it's the timing and the process. We have to make sure it's done in a way that people can absorb, digest and take in their stride.
I've certainly witnessed, because people were trying to follow the previous legislation to the letter, people being really upset, not by the knowledge itself but because of the process of having to do it now when now wasn't the right time but tomorrow might be the right time. As professionals, we have the responsibility and obligation of telling people within a reasonable framework what's going on, whether it's capacity or anything else. This should be done according to the best professional standards and knowledge about the timing and process by which this information is provided.
That's my formal presentation. I'm certainly available for questions.
Mrs Johns: I want to first of all deal with the mental harm issue in the emergency treatment. I've been trying to think about this and put my mind around it. What I need to know from you, to be able to think more clearly about this -- this is how I've rationalized it. It seems to me that if a person is coming into mental harm, the potentials are that they could hurt themselves or they could hurt someone else. That would fall under section 6 of the act, which is the ability to be restrained -- well, certainly the ability to be affected by the common law as a result of the potential damage to someone else.
Is there some other reason you feel mental harm should be put into that act? Is there something else, where they wouldn't be damaging themselves or someone else, as in section 6, that might fall through the cracks there?
Dr Gordon: I'm not just thinking about the fact that they could hurt themselves, and certainly restraints is one of the last ways we'd ever want to --
Mrs Johns: Absolutely.
Dr Gordon: It's a treatment of last resort. If you could avoid the necessity for that, that on its own would be a reason to be able to act; if you have to restrain somebody to protect them, you're doing something wrong.
But I'm concerned about the effect of postponing something on their emotional makeup and psyche, besides the fact they're doing harm, that they may be carrying with them. It may depend on what their previous experience was. People's past experiences can play heavily on how they perceive a new situation.
If somebody -- we just went through this -- had a terrible experience during the war in a medical setting, a medical setting that looks the same can be very damaging mentally if the process is delayed, for whatever reason. That emotional harm is a factor, and I think we should consider it. It's an individual situation, but I wouldn't want us not to be able to do it because it hasn't been enunciated. Probably a good clinician would find a way around it and say, "Well, the physical harm can occur because of that."
I've done this so much of my life in various jurisdictions I've worked in, where you find a way to achieve what you know has to be done. You've got legislation, and you say, "Okay, I'll call this that." But you don't want to have to do that. You want it right up front. If you want to say "significant," whatever term, but it has to be of a degree that you know can affect somebody deleteriously.
Mrs Johns: I understand. I'm not sure I would want to put that in. I'll have to think about that some more, because it may be very subjective. I think we can always guarantee what true physical harm is, but mental harm, when you're coming into an emergency room, I'm unsure about that.
The section in the act I wanted to read, because I really must have expressed the question poorly, was, "This act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others." It's not just restraining, it's confining.
Dr Gordon: Yes, but that's the same thing. Whether you're confining them to a bed with restraints or keeping them in a locked room, in the care of the elderly we try not to do that as a way of solving a problem, because it has its own risks.
Mrs Johns: Once again, you and the Toronto Hospital are suggesting that somehow the facility should be looking at rights advisers or talking about providing rights advice, as opposed to the "practitioner," which we've been kind of bantering around here. I know the reputation of Baycrest, so it's probably a result of it being such a fine institution. Can you see that all facilities throughout Ontario would at some time have the initiative and the desire and would actually provide rights advice to people, as opposed to the practitioner?
Dr Gordon: You mean the practitioner who is the primary care practitioner, such as the physician or caring nurse? You're right, I'm very lucky. I've been in the situation where I have somebody who is separate from all of us who acts as an ombudsperson, and I had the same experience at Mount Sinai. I know there are a lot of small facilities that obviously couldn't do that. But every facility has professionals.
What I'm saying is that a professional could be designated as having that peculiar responsibility, in addition to what everybody else does, and say: "Remember, when you're wearing that hat, you're not just wearing it as working for us; you're wearing that hat as part of a professional standard" -- and it could be part of a regulation, if you called it -- "that you have to comply with in an extraordinary way, to make sure you're complying with this component of what's going on, that you are there to think very carefully about whether this person's rights are being respected."
Over the years, I've had that from plain, ordinary social workers all the time. They're good people, but they don't have it as a responsibility, and they often get caught between their professional responsibility and the place they're working for. Someone says, "Get that person out of my bed; I need it," and they're saying, "Gee, I don't think they're ready to go home." If somebody is there as the responsible -- and it could be somebody who's not involved in that person's care. It just brings a more objective person. I don't think you have to create another position. It could be part of a person's responsibility, but acknowledged and designated as such.
Mrs Johns: I'll let Mr Marchese ask about conflict of interest.
1120
Mr Michael Brown: You raised some issues that were raised yesterday by the dental association. They're particularly concerned, or at least looking for clarification, around a treatment that in the circumstance poses little or no risk of harm to the person. They are confused, I gathered from them yesterday, about whether it's just controlled acts that are treatment and therefore you don't have to be terribly concerned about some routine practice that is not a controlled act and therefore you don't have to worry about the Health Care Consent Act. I hear you expressing some of those concerns today. Could you help me with that a bit?
Dr Gordon: I guess the issue is that if it's defined too severely, the ordinary things that people have done all their lives they may not be able to do. Whenever you create legislation -- I certainly in my life have been through a lot of things in legislation, whether here, in the United States, wherever I've lived. You say: "What does the legislation do? Is it a roadmap? Is it a framework? How prescriptive is it?" You look at what's the goal. You want to make sure people get the care they need in a way that's safe and reasonable, that doesn't put them at risk without them at least knowing what the risk is. We all want to make sure.
But there are many things we've done all our lives that we take -- when I go to the dentist now, he does not say to me: "By the way, you know this filling? I could break the drill in your mouth." You kind of know, because all these things we do every day. If somebody's done them every day of their lives routinely and this is part of it, you don't want to put an unreasonable barrier to be able to get it done, especially when the consequences are not life and death, but discomfort. A toothache on Friday till Monday is uncomfortable. You don't want to have to give them Codeine, which is going to make them dizzy and dopey and whatever.
It doesn't matter how it's formulated, just to make sure this range of activities that clearly -- it's not that they don't have any risk. Everything has risk. Drinking water has risks. I've had people choke on water. It's to make sure we don't have excessive barriers to these ordinary things, or that they can be included in the process, whatever we call it, at the time of admission, saying, "We're going to be looking after you for a whole range of things, including daily activity things and personal care and the medications you're already on for the illnesses you have, and in addition, these things that are part of the normal care provision," some of which actually come under the role of professionals, such as clearing of wax. Lots of people clear their own wax without going to a doctor, but if it's hard to get out, they go to a doctor. The interface between that is not clear, but sometimes you need a professional to do something which isn't that complicated, but you can't do it on your own anyway. You don't cut your own toenails when you're 80 and arthritic, because you can't, but you've cut your toenails all your life. I just want to make sure that we don't have excessive barriers to ordinary, low-risk activities.
Mr Michael Brown: One of the things the dentists were saying, if I understood them correctly, was that under the Regulated Health Professions Act, each profession has its own controlled acts they look at, and is it only those controlled acts under the health professions act that you have to be concerned about, everything else being low-risk?
Dr Gordon: Some of the controlled acts are still -- I mean, putting a filling in is a controlled act. It's low-risk. We do it all our lives. But if you have a toothache on Friday and your filling has to come out and get put in, if it's too prescriptive, you're stuck. Somebody should be able to indicate early on, a surrogate or the person, that "For these things, I will give you permission so you don't have to run and try to find it if I can't give it myself." A family member could say up front: "Look, he's always had his teeth done. Continue doing that."
Mr Michael Brown: Your question is, does it have to be absolutely prescribed?
Dr Gordon: Right, because I think you'll always miss something. I could probably come up with broad categories if we said dental care, foot care, ear care, a bunch of things that are common, recurrent, unpredictable that you want to make sure people have. Maybe you end up putting them in your upfront consent that says, "These activities I give permission for, unless they are ones that go beyond in terms of risk."
Mrs Boyd: Thank you. That's been very helpful. One of the issues around having someone designated by a facility is, as Mrs Johns suggests, conflict of interest, and I'm wondering if the vision you had -- you talked about the similarity to an ombudsman, who obviously has a line of accountability that gives them freedom from coercion by their colleagues and so on. You're thinking of that kind of thing.
Dr Gordon: Yes. Look, we are all always in conflict of interest in a sense. I'm a physician. I have a responsibility to the province, to my professional standard, to the college. I'm an employee of an organization. I have a conflict with my own staff. On the one hand I'm administration and on the other hand I'm a member of the medical staff. We all have that, and I think as long as we recognize it and it's clear where we're sitting at any given time, you can work those things through so that a person knows who they're representing at the time.
Mrs Boyd: Would you think it would be reasonable for a facility to give the name of the person it wanted to designate to the Consent and Capacity Review Board, for example, and it then designates that as the person who's responsible there so that's the way the accountability goes?
Dr Gordon: It could be, that the person formally may have their job as 90% staff social worker, 10% "other capacity," so they are in some ways protected from someone coming and saying, "Hey, come on."
Mrs Boyd: We did that here with equity people, for example. They had to report directly to a deputy minister and that sort of thing.
In this whole issue of treatment, one issue that has raised real concern for people has been the issue of people being able to change location without explicit consent. I find that a really difficult one, particularly for geriatric patients who may not wish to move from one facility to another, and whether any move like that ought to be a special item of consent. Have you any comment on that?
Dr Gordon: Theoretically, I could see why you would. Practically, people get moved for lots of reasons. In our own organization, for example, we move between the facility, but each one is a different facility legislatively and corporately. I would hate to have to go and get consent to do it as opposed to having an understanding in the beginning that any place required to get the treatment that's agreed to -- obviously, you try to communicate. We always call people, but a lot of times you can't get them. But you still have to do what you have to do. Sometimes it would come under emergency, so it's easy; sometimes it's not emergency in that sense but there are other reasons.
I'm not sure if I would like to frame it in terms of a consent, because that could be a barrier, but that doesn't take away the responsibility of communicating and understanding who and why you're doing these things.
Mrs Boyd: The other issue we've been struggling with is the issue of nutrition and hydration. Have you some advice for us as to how we can ensure that when it is appropriate medically to no longer offer by mouth food and hydration, that's possible, while at the same time ensuring that people are not disadvantaged by not being offered food and hydration?
Dr Gordon: I'll tell you, I just spent three days at a conference on clinical ethics. It is one of the most difficult, and part of it is a societal approach, and it changes from one society to another; religious, all kinds of factors. Although I think it is accepted in North America and people can give directives to do that, we always have to counterbalance it, and for that I think there has to be a framework within every organization, even if it's on a consultative basis from somewhere else, to look at the ethical implications of the withdrawal. I'm not saying it can't be done, because I think there are circumstances where it can be done and perhaps should be done, certainly if somebody autonomously said they wanted it that way, but there should be a mechanism by which there is an external party. It could be from the institution, but external to that particular area, like an ethics consultant or a network, that at least can give some kind of perspective as to all the implications of it. We do it, even though in our organization it's even harder to do, but there is a framework by which we do it. It isn't just the doctor saying, "All right, pull out the tube," and it's over. It should be a very well-thought-out thing because the implications are so great.
The Chair: Thank you, Dr Gordon. I really thank you for assisting this committee today. We appreciate it.
Mrs Johns: Mr Chair, I just want a moment for a point of clarification on Mrs Boyd's question. I'm unsure whether she was talking about clause 11(b), but that doesn't entitle us to move the person, as a result of them being on a treatment, to another location. What that allows is that if they move to another location, it allows the treatment to follow the person.
Dr Gordon: Can I comment? That's very important.
Mrs Johns: I think so, too.
Dr Gordon: I must say that in my own experience -- tragic -- I've seen important treatment stopped because it didn't follow, even though one had hoped to write the orders but people weren't sure how valid they were. So that component of it is very important.
Thank you for the opportunity.
The Chair: I'd ask the committee to consider when we should meet on Monday. We have a lot of coordination to do of the various materials; we have a wealth of materials. I'd like your guidance this afternoon as to when we should initiate clause-by-cause on Monday. Thank you. We'll recess to 1 o'clock this afternoon.
The committee recessed from 1131 to 1305.
ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
The Chair: Our next submission is from the Royal College of Dental Surgeons of Ontario. You have one half-hour, including any questions.
Dr Minna Stein: My name is Dr Minna Stein. I'm the deputy registrar of the Royal College of Dental Surgeons. The Royal College of Dental Surgeons, as you know, is the regulatory body for the dental profession in this province. We're charged with the responsibility of governing the dental profession in the public interest. With me today is Dr George Citrome, the president of the college and a practising dentist from Ottawa. Mr Alan Bromstein is the general legal counsel to the college.
We are pleased to have this opportunity to speak with you regarding Bill 19, the Health Care Consent Act. Prior to the proclamation of the Consent to Treatment Act, the college made a number of submissions to the then standing committee on administration of justice, and while some of our concerns that we expressed at that time were incorporated into amendments to the legislation, many of the concerns we expressed were apparently ignored. Consequently, we are very pleased to see that the government proposes to replace the Consent to Treatment Act with this new legislation, legislation we believe is simpler and more workable to the health practitioners of Ontario.
Having said that, there are, however, three areas we would like to bring to your attention. We believe these three areas continue to create some concern and we would like to offer some modest amendments which we feel could rectify those concerns. So without any further ado, I'd like to turn the floor over to my colleague Dr Citrome.
Dr George Citrome: I'll speak to two areas of concern, firstly with respect to the presumption of capacity. The legislation appears to give a great deal of flexibility to the health practitioner in determining whether a person is mentally capable with regard to giving consent. The legislation, however, does provide that a person is presumed to be capable in all cases with respect to treatment, admission to a health care facility and a personal assistance plan.
This is of assistance to any health practitioner in circumstances where the person is of an age where one would expect them to be capable. On the other hand, this section also causes a young child to be presumed to be capable, thereby requiring the health practitioner to go through the various steps required before finding the young child to be mentally incapable of providing or refusing a valid consent. Our college therefore suggests that it is equally important to provide a presumption against capacity for young children.
In light of our concerns, we propose that the legislation be amended to presume capacity with regard to persons 16 years or older and to presume incapacity with regard to persons 11 and younger, and this would leave no presumption for those persons who are between the ages of 12 and 15.
The second concern I'd like to address is with respect to an obligation to advise patients of the opportunity to apply to the Consent and Capacity Board.
We understand that health practitioners are to hold off treatment of a person who the health practitioner finds is incapable with respect to the treatment where the health practitioner is informed that the person intends to apply to the Consent and Capacity Board for a review of the finding and so long as that application is not prohibited by subsection 30(2) of the legislation.
Unfortunately, we cannot find anything in the legislation to indicate whose responsibility it is to tell the patient of her or his rights to have that finding reviewed by the board.
We're aware that many health practitioners objected to the onerous provisions in the Consent to Treatment Act, 1991, where a health practitioner was required to provide this type of advice. None the less, if the proposed legislation is silent on the issue, we are advised that it is likely that a court would conclude that the health practitioner has a legal obligation to assist his or her patient by at least advising the patient of the opportunity to apply to the board for review of the health practitioner's finding. To alleviate this uncertainty, the college would propose that a specific provision be included in the legislation setting out exactly what is required of the health practitioner.
Mr Alan Bromstein: I've been asked to speak to you in respect of the issue of informed consent. Let me preface my remarks by saying I'm not going to follow the script. The script is there for you to read at your leisure and to have your lawyers read, because it really raises a legal issue that we've attempted to be specific upon in the written form.
What I'm going to attempt to do today is to try and provide some education, and that may simply create more confusion because lawyers aren't very good educators, for those of you who may wish to understand that we believe there is a possibility, and perhaps even a probability, that this legislation will create some confusion in the law as it exists today. It's really our intention here to seek clarification and to bring this potential confusion to your attention so that you can take what steps you think are appropriate.
The area involved is really the one of civil liability. There is no issue -- I'll use the royal "we" -- we have no issue with the professional responsibilities of members of the profession of dentistry in obtaining an informed consent, and we very much like the fact that there is a list of the kinds of things that reasonable people would want to know about before making a decision on their treatment. That professional responsibility will be taken seriously by this college.
Having said that, however, we are a little confused about what the intended result was if one fails to get an informed consent, and whether or not it was the intention of the legislation draftspersons to change the law of informed consent, which some lawyers refer to as the law in Riebl v Hughes, a decision of the Supreme Court of Canada.
If I can explain briefly and in very simplistic terms what that case was about, a patient was suing because they had not been advised of material risk of treatment and the court found that they should have been advised of that risk in order to make an informed choice.
But the court went on to clarify and said two things. Firstly, they said the failure to advise a patient of material risk is an act of negligence, as distinct from an act which before that might have been considered a battery. So you understand the distinction, a battery is an intentional invasion of one's bodily security. The theory at that time was that if you did something without someone's consent, in other words, you picked them up of the street while they were asleep and you did something to them without any consent whatsoever, well, that's clearly a battery. You've invaded their bodily security.
But if they agreed to have some treatment with you and they gave you the agreement because they didn't understand all the issues involved in the treatment, then was that a battery? Did you invade their bodily security or were you simply negligent because you didn't get their informed consent? The court said, "This is an area for negligence."
The results of an action in negligence and an action in battery are very different and I won't go into detail, but they are different. One of the questions I ask and the college asks when we look at this legislation is: Are we going back to a situation where, if a member does not get an informed consent perhaps because they forget to tell of an alternative treatment -- simply that, they forget to tell of an alternative treatment that the person should have known about -- is that now a battery? I don't think that was the intention but it isn't clear that the law of Riebl v Hughes is to be maintained and it's still to be within the law of negligence.
That takes us to the second issue that was decided in Riebl v Hughes, and that is, what happens in a situation where the person wasn't told of a material risk, the material risk took place, but the court says, "If a reasonable person had been told of this risk, given the plaintiff's circumstances, they would have consented to the surgery anyway"? So they say it's a risk they should have been told of, because people making informed decisions should know about material risk -- it could be a risk of death or paralysis -- but the court finds that even had a reasonable person in this person's circumstances been told of that risk, they would have consented to the surgery.
It's not good enough for the patient to come forward now and say, "I wouldn't have had I known," because it's happened to them. So they use a reasonable person test in the patient's circumstances, and the court said that in that circumstance there's no liability.
When I look at the legislation you've proposed, there is a subtle difference between what you've proposed as to what is an informed consent and what the Supreme Court of Canada says is actionable as a failure to get informed consent. While it's subtle, I think it's distinctly different. You say, or the bill says, for a consent to be informed, in effect, a reasonable person in the same circumstances would require the information in order to make a decision about the treatment. There'll be many occasions where that's true, where someone may want to know that one of the alternatives to treatment might be a procedure that costs 20 times as much. They have a right to know that to make their decision. Maybe they want to mortgage their house to do that.
However, having found therefore that they are entitled to know that information, what happens if the individual, the practitioner, fails to give that information, but a reasonable person in that person's position wouldn't have adopted the alternative treatment anyway? The Supreme Court says there's no liability, and there's nothing in the legislation either adopting the Supreme Court's attitude towards informed consent or specifically indicating that it's changed. That's the confusion we think is raised.
What we're really saying is two things: One, are we going back to it being a battery if someone fails to do something small under this act, which in good faith the person should have done? It was a failure on their part. The person should have known about the alternatives. Is that a battery or are we in the law of negligence? We think that needs to be clarified. Secondly, is it really your intention to compensate people civilly or have courts compensate them even in circumstances where the individual, had they known of the alternative or of the risk, a reasonable person in their situation would have consented to the treatment none the less? That's Riebl v Hughes.
We anticipated it was not your intention to do that and we provided an amendment. Far be it for us to say this is going to fit right into what you have today, but we have provided an amendment as a suggestion, if that is your intention, on the last page of our materials for your solicitors or legislative counsel to consider.
Mrs Caplan: You've raised a new issue or one that hasn't been before us before. I'm assuming I have a little bit of time.
The Chair: You have five minutes.
Mrs Caplan: Great. The first question I have is, was the Royal College of Dental Surgeons of Ontario consulted by the minister, either Health or the Attorney General, prior to the tabling of Bill 19?
Mr Bromstein: I can speak to this much: This issue was raised for the first time when we saw the Consent to Treatment Act, the issue of informed consent and the intent of that legislation. I think both legislations left open the same questions in our minds.
Mrs Caplan: Did you have an opportunity to see the legislation before it was tabled and to raise the concerns with the minister as part of a consultation prior to the tabling of the legislation?
Dr Stein: No.
Mrs Caplan: Okay, that's the first question. The second one or the point that I'll get into is I'll give you my interpretation, if I can, but more than that, some thinking on it, and maybe it will help you. I'd ask for clarification certainly from the ministries, because I think you do raise an interesting point.
I am a supporter of self-governance for the professions. I think you know that because of the role I had during the development of the regulated health professions legislation, and I've repeated that many times, but I think there are some issues that should be clarified and be up front in statute. Gilbert Sharpe, legal counsel for the Ministry of Health, will tell you that I've always argued that the issue of informed consent is one of those that should not be left without having that clarification in statute.
It's not in statute now. It's been left to common law. Your advice that we put something in here that would clarify it, I think, would give me comfort and clearly state the obligation, not on the basis of freedom from liability necessarily, but I think the obligation should be there so that it is the colleges who can lay out what is negligence.
I believe, by the way, that you can do it today. You can set out protocol for dentists and if they follow that protocol for obtaining consent, they could then argue, if they were challenged in a court, that they had met your standard and therefore it was neither negligence nor battery. If they had not met your standard, if your standard wasn't clear, then in fact it would be up to the courts to decide whether it was negligence or battery and, based on the Supreme Court decision, likely it would be negligence. I think that's the point you're making.
1320
Mr Bromstein: I think the only clarification I could make is that the law of battery will have nothing to do with the guidelines or even any legislation of colleges, because we can only legislate in the area of standards of practice. Battery is an intentional tort to the person. My concern is this may bring back the issue of whether it is a battery.
I agree with you that we can legislate what has to be given in so far as obtaining an informed consent, but as a matter of the most appropriate form, we like the list you have. Every person should have all those things given to them. The question then is, as a profession, we will tell the members of the college, "This is what you should be doing." We don't necessarily agree though, because an alternative form of treatment is not discussed, one that a reasonable person in that circumstance wouldn't have elected anyway, that it would constitute something actionable.
Mrs Caplan: My guess is that the courts would agree with you. If you got to that point and you were able to argue that, your members, if they had followed your protocols on getting consent, in fact would be okay. I think in these things you always want to err on the side of making sure that the patient is aware and does understand. I know that the ministries will take a look at what you've proposed, and during clause-by-clause, I'd like to have some discussion on that.
I have another question, and that is, do you believe that where the patient is incapable of consenting, because a dentist believes he's now dealing with an elderly patient -- or never mind an elderly patient; it could be someone who perhaps is a little delusional who might qualify under the Mental Health Act on a form 1, that kind of thing, or of questionable competency -- the dentist should have an obligation to communicate to that individual that he believes they are unable to fully understand and appreciate the consequences of the proposed treatment and that he's going to call in a substitute? Do you think that's a reasonable requirement for a professional?
Mr Bromstein: I think Dr Citrome has indicated in his presentation -- he referred to an opinion and it is my opinion that a court is going to find that there is a relationship between that incapable patient and the practitioner, a relationship which requires more than simply saying, "I'll take my consent from A because I don't believe you're capable."
Mrs Caplan: Right. And in that case, this legislation now holds the practitioner free from any liability, even if they haven't communicated that fact and they have not communicated the individual's right to object to the finding or actually make application to the health consent board. Do you think there should be that freedom from liability, that it should be absolute, that there should be no accountability and nobody should have to be informed?
Mr Bromstein: I would tend to draw a distinction. I think the practitioner has a right to believe that they have an informed consent.
Mrs Caplan: That's if they're capable.
Mr Bromstein: No, an informed consent, if they obtain the consent from the individual who is properly a substitute decision-maker as a different and distinct issue, I think, a court will say -- and I'm just speculating as we have been in all of this -- independent of this legislation: "You have certain duties to your patient. Your patient isn't the person who gave the consent; your patient is the incapable individual. What were those duties to that person?"
And to the extent that there now is some uncertainty of what the duty is, we think there should be some greater certainty of what the practitioner's obligation is, even if it is simply to advise of the existence of a board and the rights of the person to challenge the decision.
Having said that, we raised it in our written materials saying that's something to be considered. Certainty is better than uncertainty.
Mrs Caplan: I agree with you, and I believe that certainty is good whether the patient is capable or incapable.
Mrs Boyd: It seemed to me that we kind of got a little bit confused between the disclosure that is implied by informed consent, and the issue around informing the person that they're incapable, and the issue of the ability to appeal. At least, I got confused. I don't know about you.
The suggested change that you're making here only applies to the informed consent situation. In other words, that's the issue that you have with the suggestion that you've got to section 27.
Mr Bromstein: The one that I've spoken of deals only with civil liability, correct.
Mrs Boyd: I assume, because you've given it in the way that you have, that you would want it sort of reworded to fit 27(1), 27(2), 27(3), 27(4) and 27(5).
Mr Bromstein: It has to be blended in.
Mrs Boyd: All of those sections, so it would be 27(1) and the subsequent sections in the same way. That's what you're suggesting.
Mr Bromstein: It was our intention simply to bring to your attention the issue and then your draftspeople would, if you agree with the principle, blend it into the legislation.
Mrs Boyd: So that the withholding of treatment would be subject to the same kind of thing, because this has been one of the issues. The act permits the giving of treatment, but it also permits the withholding of treatment. You would want it to apply to both of those.
Mr Bromstein: I'd have to consider that, because I don't want to answer quickly and misunderstand the point.
Mrs Boyd: Okay. Subsection 27(1) talks about actually administering a treatment. Subsection 27(2) says,
"(2) If a treatment is not administered to a person because of a refusal that a health" care professional "believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this act, the health" professional "is not liable for failing to administer the treatment."
In other words, I would assume that you would want to be in the same situation as a physician around not administering a treatment if you understood that the refusal was according to the act.
Mr Bromstein: In fairness, that was not the intent of what we put forward, to be fair, and we didn't consider that. But the intent was really dealing with not changing the law of Riebl and Hughes on informed consent, not on withholding. We were not attempting to address the withholding of treatment.
Mrs Boyd: So we need to understand that your suggestion is only about subsection 27(1).
Mr Bromstein: As it relates to informed consent.
Mrs Boyd: As it relates to informed consent.
Mr Bromstein: Correct.
Mrs Boyd: And possibly subsection 27(4) which is again about the administration of a treatment.
Mr Bromstein: And (3) also I think deals with consent, right.
Mrs Boyd: And (3) also, okay. Just so that we can be clear -- because as we start to go through clause-by-clause, we just need to be really clear. I would have assumed, since you just said section 27, that you meant it to refer to all, and you're not at that point, so we just needed to know that. I don't mean to belabour it.
On the other issue, you are basing all this on this notion of presumption of capacity, and that's really important, isn't it? Certainly from the gerontologists who have come in front of us talking about the difficulties that you and they experience around dental care for seniors -- for example, they would probably agree with you that it's very important that there be a provision here that enables a plan of treatment to cover dental care if that has been the norm in that person's life.
We heard the physician, Dr Gordon, from Baycrest this morning talking about the importance of that in terms of sort of judging implied consent and you would agree with that? Is that where you've run into most of the difficulties?
1330
Dr Citrome: No. We would run into the difficulties with children, the other way. It would be cumbersome to lay out all the -- for lack of a better word -- rigamarole to get valid consent when they can't understand.
Mrs Boyd: I hope you'll forgive me if I disagree with you. I believe that children also ought to be presumed to be capable. Certainly, that would differ from age to age for a child.
Mr Bromstein: We were never married to any particular age group, but the fact is, I think I can present some age of some children, three, four, where you would say the presumption really should be that they are not capable, for almost any -- I can't think of a treatment they'd be capable for. We were simply saying, if you presume capability for certain age groups, it seems to us that you may wish to presume incapability for certain age groups and everyone in between really is where you focus, because some children, by virtue of their tender years, could not be capable.
Mrs Caplan: That's a question of judgement.
Mrs Boyd: Yes.
Mr Bromstein: No, but you have a piece of legislation that says they are presumed capable.
Mrs Boyd: In front of the courts, we listen to children who want to testify about victimization who often are three or four years old. The presumption of incapacity has a lot of implications if we go that route, and I think that's one of the reasons why, as far as I can tell from the discussion, there's no disagreement of us on this side of the table with the government's position that there should be a presumption of capacity for all age groups. And you need to know that it goes further than just health consent. As soon as you start defining those ages, you get into some pretty muddy waters around the capacity of children to do other things.
Mr Parker: Thank you very much for your presentation this afternoon. I'm pleased to note that by and large you register approval and support of this bill, but you have raised a few very precise points and some in areas that are quite technical, I would suggest.
Let me see if I can address each one of them. Actually, frankly, I would endorse the comments made by Mrs Boyd as to the age of consent. We have the same difficulty that she's outlined, if for no other reason than -- your suggestion, frankly, just introduces another layer of inquiry that the decision-maker must make before deciding on whether we're dealing with capacity or not. You have to pull out birth certificates or something to figure out just how old this person is, and the approach that we've tended to take in this legislation is that each case will be decided on its own merits and the person on the scene and making the decision is the one best able to make the decision that has to be made.
Obviously, if you're dealing with a babe in arms, it's pretty quick to overcome the presumption that the statute has, but it's kind of hard to come up with a precise age at which the presumption should flip from one to the other, we are suggesting. Our approach has been to leave it to the decision-maker on the spot to assess each situation as it comes before them.
But just dealing with your other points, briefly, Riebl and Hughes -- you're the first one to mention Riebl and Hughes before this committee.
Mr Bromstein: We may have been the only one on the last occasion.
Mr Parker: Well, we've only got one afternoon left. I'm not aware of any motivation on the part of any of the draftsmen to overcome the rule in Riebl and Hughes by means of this statute. Frankly, I don't think we have done that, but your point is one that merits attention, and I'm anxious to see to it that we ensure that your point is --
Mr Bromstein: I think the intention is, we didn't think you intended to, our concern is that it's happened. If it wasn't intended, it can clearly be identified that it wasn't by putting something in to make it certain that it hasn't been changed.
Mr Parker: We just want to make sure that by doing that, we haven't opened up another can of worms that causes us more trouble.
Mr Bromstein: Absolutely.
Mr Parker: So it's a point that you raised quite correctly, and I am anxious that we satisfy ourselves that we've addressed it adequately.
Your particular recommendation on page 6 of your paper -- I'm going to suggest to you that we've done pretty much as good a job as we could be expected to do, by virtue of sections 10 and 19 when you put them together. I don't know if we want to override that with some sort of a general reasonable man test, given the quite elaborate structure that we've already put in place here, to try to ensure that we've got informed consent or where there is a lack of capacity the decision made is made according to the appropriate criteria to the case. I just direct you to those sections for how we think we have addressed the issue you've raised.
Your other point -- you were asking for some direction in the legislation; I'm looking at the bottom of page 4 -- is that a specific provision be included in the legislation setting out exactly what is required of the health practitioner in matters of advice and so on. Frankly, you're the first professional body to request that. By and large, the recommendation we have received is to get the statute out of the faces of the professionals and to not give in to the urge to micromanage the professional judgement of people who are applying these principles in daily practice, that this is a matter best left not to a bunch of politicians sitting around in a Legislature but to professionals and professional colleges and that level of detail and that level of familiarity with the issues. I'm just interested in your further comments on that point.
Mr Bromstein: I can tell you that the college has had a lot of discussion on this and we're not seeking to micromanage through statute either. One of the changes from the previous legislation, which I think did that, was certainly appreciated by this college because we don't think our members could have managed the legislation, to be honest.
Having said that, however, we thought it appropriate to bring to your attention that, whether you put it in your statute or not, we don't think courts are going to ignore the fiduciary relationship between patient and physician, patient and practitioner, patient and dentist in the responsibility to do something for that person you find incapable.
As a matter of certainty, the college's preference would be to have, and this is simply a suggestion, a form prescribed in the regulations, which would be given to an individual and which would be simple and would be acceptable as a basic level of information. That would be something we would look favourably on, so that it would at least fulfil a minimum requirement. If not, it leaves it to the colleges, I think, to provide information to their members as to what they think the obligations of each member are in discussing with the incapable person their determination that they are incapable.
The Chair: Thank you, Mr Parker, for your attendance and your presentation here today.
MARILYN O'CONNOR DIANNE STONE
The Chair: Our next submission is by Marilyn O'Connor and Dianne Stone. Welcome to the deliberations of the standing committee on administration of justice. If you would, proceed.
Ms Marilyn O'Connor: Good afternoon. My name is Marilyn O'Connor and I'm a rights adviser. Dianne Stone is my co-worker and she's also a rights adviser. We're not here today on behalf of the Advocacy Commission, we're here as individuals. We wanted to take the opportunity to share with you some of the experiences we've had in working with this legislation on a day-to-day basis. Dianne is going to start.
Ms Dianne Stone: Since April 3, 1995, the Advocacy Commission has been responsible for providing rights advice under the Consent to Treatment Act, the Substitute Decisions Act and the Mental Health Act across the province, with the exception of the 10 provincial psychiatric hospitals. Our rights advice team is made up of a centralized intake and referral unit and the community rights advisers. Originally the demand for rights advice wasn't known and we began with 39 rights advisers. Today there are 20 rights advisers across the province, working out of our homes at an hourly rate of $18.50.
We were hired based on our academic, professional and volunteer backgrounds as well as our ability to relate to vulnerable people. We received two and a half weeks of intense training and we were required to achieve at least 75% on three stringent exams in order to be authorized to provide rights advice.
Our intake and referral unit receives calls 24 hours a day, seven days a week, through a toll-free line. They are able to provide information and referrals to community services, government agencies and advocacy groups, using a database that contains a directory of services available in all parts of the province.
They also receive requests for rights advice from medical staff, lawyers and assessors. They input the request and assign a rights adviser. They track the request from initial call to file closure, to ensure time lines are met and rights advice is provided. Centralized intake and referral provides a streamlined and efficient service.
1340
Each client we meet with is different, and so each rights advice visit is different. It's difficult for us to give a general description of what we do. We meet with clients wherever they are, whether that be in a community hospital, in a long-term-care facility, in the client's home or even sometimes on the streets. Our goal is to provide our clients with the information they need to make informed decisions, and we're sensitive to each client's needs. We use the services of cultural interpreting or alternative communication if needed.
We explain to clients the situation they're in, its impact and the options the person has to deal with the situation. The options we present can include doing nothing, discussing it with the doctor or applying for a hearing with the Consent and Capacity Review Board. Under the Substitute Decisions Act, the option can also include appearing in court. If the client chooses to apply for a hearing, we follow through with that request.
We act as a liaison to the client and counsel and provide information to medical staff and families when the client requests. We encourage communication between clients, medical staff, family and service providers. Clients often have other concerns, and because we're in the communities we serve, we're able to provide them with information on services and how they can access them.
Rights advisers are not advocates. We don't tell clients what to do and we don't make decisions for them. We don't have access to clinical or personal records and we don't consult on treatments. Rights advisers do not delay treatment to the detriment of a person's health. In general hospitals rights advice is only required if the person requests it. It's our policy to respond promptly to these calls. In fact I was involved in a rights advice request recently where I arrived on the ward before the patient did. These types of requests represent less than 5% of all of the rights advice visits that we do.
We believe that rights advice is necessary, and our experience confirms this. We make decisions about our lives every day: where we live, what we eat, what activities we're involved in, how we spend our money, what's done to our body. Sometimes our decisions are questioned, but it's assumed that we understand the consequences and that we do have the right to decide. Sometimes people are not able to understand the consequences of their decisions, and society has a duty to protect these people from harm.
The law gives certain professionals, like doctors and assessors, the authority to suspend the right to make certain decisions if they feel a person's not capable. But determining capacity is not an exact science. There's no reliable and valid tool to measure competence. It's a very subjective process. We've seen many findings of incapacity that were questionable. For example, a rights adviser in the east region met with a gentleman who was found to be incapable. It turned out that the man was hearing-impaired and the people responsible for the assessment didn't know that.
The result of a finding of incapacity is a very serious matter. Due process must be followed. That includes letting the person know that they've been found incapable and why, the impact that this will have, and ensuring that they have access to legal recourse. The person has the right to not merely be told or served written notice but to understand.
We don't believe that rights advice can be provided adequately by medical or hospital staff or by employees of the public guardian and trustee. It's essential that it be provided independently from the authority that is seeking to remove or to assume decision-making authority.
Ms O'Connor: We know you've heard from a lot of lawyers and there's been a lot of discussion on charter issues. We really don't want to get into that because we're not lawyers. What we wanted to do was to bring to your attention from our experiences some of the practical things that you may not have considered.
Often, particularly under the Mental Health Act, when we meet with clients we spend the first period of time convincing them that we're not in any way affiliated with the hospital. It's a real concern to them. You have to realize that when you're being held involuntarily and when people at the hospital have the right to let you use the phone or not, get dressed or not, you feel in a pretty powerless situation. So we wanted you to know that's something that might be problematic if you have hospital staff, whether it's nurses or people from administration, that you may run into some problems with the patients feeling that they're really not getting a fair shake.
Another point that's quite practical is the time involved. There have been a lot of questions from people around this table about, "What do you do as a rights adviser? How much time does it take?" The time involved in an interview can vary. It could be 20 minutes or it could be two hours. If there's a review board request, which happens in approximately 30% of our cases, you can probably add another six to seven hours of work to that, because you're involved in retaining counsel and ensuring legal aid applications are filed. If there's property involved, you may be involved in ensuring that mortgages and deeds are available to legal aid. You'll be consulting with counsel, sometimes with medical staff, the public guardian and trustee's office and the courts.
We submit that if someone is working in the admin office with a full-time job and there are approximately 10 involuntaries in that hospital that week, and even three of them go to review board, they could in fact look at 30 to 40 hours of extra work on top of their regular job. We thought you might want to have an idea of what actually is involved with this before you make any final decision.
One issue that's come up with rights advisers all over the province has to do with seniors. Something that we've seen that's given us cause for a great deal of concern is admissions to long-term-care facilities. Often what we see is that it isn't really a question of the person's capacity so much as a difference of opinion. If you look at page 5, there's a short little story that we think outlines that fairly clearly. It's at the bottom of the page and it goes through a situation that a rights adviser ran into involving a 92-year-old man.
No one is trying to say that the health care practitioners in this area meant any harm or had any malice, but when you look at someone's capacity it's so subjective. In this case they really thought that this gentleman was doing too much by walking two miles a day and keeping a big garden. But if you were to ask me, I'd say, "Gee, I hope I'm so lucky when I'm 92 years old."
That's why we think in this particular situation it's really important that these people have access to independent rights advice and to the review board, because what happens here could possibly affect where that person spends the rest of their life. It should be also noted that most seniors who are going to review board on these issues and are heard are successful and do return to their own homes.
The last thing I want to bring up is education. Because we've had the practical experience of being out in the field from day one dealing with this package, it became pretty clear to us early on that the health care practitioners and the public did not have very clear information about this legislation. When we were going out into hospitals and nursing homes, immediately we had the practitioners, nurses coming up to us and asking to explain to them what the legislation said.
We'd frequently refer them to the manual that was produced by the colleges. In hospitals we'd refer to the manual produced by the hospital association. What we found was that often doctors might say, "Yes, I probably did get that but I never got a chance to read it, so can you just explain it to me?" Or you'd go into a hospital and they'd say, "Manual? Is there a manual?" and we'd be giving them the address where they could send away for the manual.
We're not trying to criticize the colleges but we just want you to know that the last time it didn't seem to work very well, the route that was taken, which was to let the colleges handle the education, and you might want to consider those things when you're looking at education. We would suggest that you take responsibility to make sure that the health practitioners and the general public actually do have a good understanding of the new package. Otherwise we could run into more tragic situations like Lonnie Clemens.
In conclusion, we really do believe that independent rights advice is important and essential in a democratic society and we believe that there must be some type of delivery system that could be brought in that would be financially responsible.
We have three recommendations:
(1) That the right to know and receive rights advice be restored for findings of incapacity to consent to treatment and findings of incapacity to consent to admission to a long-term-care facility.
(2) Provide a service delivery system for the provision of rights advice that is independent from anyone with authority to make a finding of incapacity or anyone seeking to assume a decision-making authority.
(3) That a reasonable time and sufficient resources be provided by the government to ensure adequate orientation and education to health care practitioners, facilities and the general public.
That's all we have. We wanted to leave time for questions.
Mrs Boyd: Thank you very much for coming and telling us a bit about your experience with the act. One of the things I'm curious about is the extent to which you felt there was hostility to rights advisers on the part of the health professionals or whether your sense was that health professionals were really just boggled by this whole process and finding it difficult to cope? Or was it really hostility to the notion that anyone else might intervene?
1350
Ms O'Connor: I think we're very proud of the work we've done. Initially, yes, when we first went out there was suspicion. I wouldn't go as far as to call it hostility -- we were dealing with professionals -- but certainly there was concern and suspicion, and what we have found in the physicians and the nurses in health care facilities that we've dealt with, is that within about three months we'd turned that around 180 degrees. In fact, the health care practitioners that we deal with give us nothing but praise and tell us that we're giving them a great service, so we're very proud of that.
Mrs Boyd: You see, that was the experience when the Psychiatric Patient Advocate Office first opened too. There was a whole lot of initial worry, and a lot depended on the personality and the approach of the individual advisers who were involved, but I think a lot of that apprehension disappeared fairly quickly when people saw how this actually worked in practice and what happened.
I guess one of the things that concerns us is that we've seen a real dichotomy, for the most part -- not entirely -- between health care professionals of all colleges really expressing concerns about whether it is their job to give rights advice, and yet feeling that there's interference if someone else gives rights advice, and the consumers being virtually unanimous in saying that they need that kind of support in order to ensure that their rights are followed. Does that surprise you?
Ms O'Connor: I guess what surprises us is, we've been watching the hearings in the evenings and we have heard the colleges speak, and there's a real difference between what the colleges are presenting and what we hear out in the field. Every day that I go out now, doctors are coming up to us and saying: "You're not leaving, are you? What are we going to do without you?" So we go out and hear this from the people that we actually work with and then we hear the college presenting the way it does. I think you're better off to talk to the people who actually work with the legislation and with the people. It's easy when you sit in a big office in Toronto to make assumptions but not actually have any real experience to base them on.
Mrs Boyd: We've heard a lot of talk about this Mirandizing situation and reading out the form and that sort of thing, and I think all of us feel that there's no question the way that all was handled, as though it was a requirement, very similar to police officers, was offensive to everybody, whether it was consumers or providers and so on.
So we're not unhappy about seeing some different way in which that can be done, but it's very hard to try and determine how we can be sure that the consumer is actually getting what they need when you see this reluctance on the part of the governing body, particularly the college of physicians. We didn't hear that from the College of Nurses, for example, although we did hear their assumption being that all nurses would do that anyway and certainly hearing from consumers that that's not the case.
Ms O'Connor: Certainly under the Mental Health Act it's required that there be service of a particular form on someone who's being held involuntarily, and our experience is that about 50% of the time that takes place. So if you look at that issue -- and it takes -- what? -- a minute to hand somebody a form -- if you're going to depend on somebody to give rights advice when 50% of the time they don't even give out the notice, I think we're going to be into some real problems.
Mrs Boyd: Yes, and the vast majority of cases have been under the Mental Health Act.
Ms O'Connor: Almost 80% of the cases that we have dealt with have been under the Mental Health Act, and as we say, under the Consent to Treatment Act it's been just under 5%. In fact, the majority of the cases that we've seen under the Consent to Treatment Act either are in a psychiatric facility or are on these long-term-care admissions. Medical treatments have consisted of probably less than 2% of our work.
Mr Parker: Thank you very much for appearing this afternoon and speaking so effectively and eloquently on behalf of your recommendations.
If I might, I'd like to take off my government hat for a moment and just ask some questions as a private MPP. You have spoken quite eloquently on your view of the need for independent rights advisers in the model that you have recommended before us. Can you think of any other model that might be acceptable, that might be workable? I'll give you an example that's just sort of floating around in the back of my mind.
I come from East York, where we have Toronto East General Hospital, and Toronto East General has an ombudsman on staff who's independent of the hospital structure but is there to do many of the things that I hear you describe that a rights adviser might do. Now, that ombudsman has a business card that identifies her as in some way being associated with the hospital, but she acts quite independently of the hospital administration and does what you would expect an ombudsman to do. Is that sort of model acceptable to you in any way? Do you see that as something that we could work with?
Ms O'Connor: I think the only problem there is, if you have the same employer, that is, the same person paying the salary, that would be the problem. If you could have it set up in a way that they were independent in terms of they're not on the hospital's payroll, something like that where you had an ombudsman-type service might work. But I think it's important that they're not on the same payroll as the doctors and nurses and the staff of the hospital, because our experience, as I said, is that so frequently the first thing we do when we get there is convince the person, before they'll even talk to us and feel any trust in us, and to say, "No, we come from out here; we're not part of the hospital," because they are being detained against their will and all of these other issues come in.
A gentleman spoke actually to this committee, and I'm not sure it was the same members. It was a Mr George Mainer on February 7. I think that might give you an indication, if you remember that, of the degree of distrust some patients feel towards the hospital or anyone who's on that staff. So that was the point we really wanted to make clear.
Mr Parker: I don't think any of us is likely to forget the testimony of Mr Mainer. My friend has a question.
Mr Fox: Are you people ever in a position where you have to overrule someone who has the consent for these people?
Ms O'Connor: No. A rights adviser under absolutely no conditions makes decisions on behalf of anyone. Our role is to give the information and to assist the client at their direction. We make no decisions.
Mr Fox: So how do you find out about who needs this assistance?
Ms O'Connor: Through our intake and referral service. The calls are filtered through the 800 line. Either they come in by fax or by phone from facilities all over the province. There are about five people in this room and they take in the calls. We have beepers. When a call comes in in our area, we're beeped and we take the information. Then we go out and do the call. We work out of our home. Our offices are set up in our own home. We work out of a briefcase and we have a beeper and we travel around the geographic area that we cover, taking care of the rights advice calls that come our way.
Mr Fox: I kind of question the fact that you only have two and a half weeks of training, because you are taking a fair responsibility here for someone's life that you really don't know much about.
Ms O'Connor: The training that we had was on specifically the legislation. It's our responsibility to understand what the process is and what the person's rights are. We don't make any decisions. We don't in any way attempt to influence anyone to go to review board or not to go to review board. All we do is go in and present the facts that the finding's been made, in commonsense language so that they can understand what that actually means. You know, "You're involuntarily detained." That means they can't leave the hospital. We put it in plain language so they understand, and then we present the options. If they give us direction, we follow their direction. If they say, "We're happy," we say, "Fine, we're out of here."
Mr Ramsay: Thank you very much for your presentation. We certainly have no argument with your first recommendation. We really do agree that it's important that the person who's been deemed incapable has the right to know and is given rights advice. What we're still trying to grapple with is what mechanism should be employed in the bill to make that happen.
There would be several different options. Obviously, we want to make sure that one way to do it would be that it would be duly noted and possibly witnessed that it was given. Another way might be to have incentives in the legislation so that there would be no liability protection if rights advice was not given. There are other options. I guess what I'd like to have from you today is maybe another opportunity from you to present your case of why you so firmly believe it really has to be from an absolutely independent individual to give that advice.
Ms Stone: I think one of the most important factors to consider there is that the people we see want it to be from an independent source. They don't hear the same information from the person who says they're incapable as they do from an independent source.
Marilyn talked about how patients who are involuntarily admitted to hospitals feel pressured by doctors. Doctors have the authority to give them privileges to leave the ward, to use the phone. They're afraid to challenge a doctor to his face, that he could take away their privileges. It needs to be coming from an independent source.
1400
Also, when we present information to clients, we do it in a very non-biased manner. We give them factual information. It would be easier for a health care facility that's in the business of protecting the client, that's in the business of looking after their best interests, to present that in a more biased manner. It would be difficult for them not to present it in a biased manner. If I decide somebody's not capable, it would be difficult for me to give them information as if they were capable. Marilyn?
Ms O'Connor: Yes. I agree with what she's saying. I think it's very difficult to put yourself in the position when you're, for example, making a decision that someone's not capable, to then give them objective information on how they can go and argue against what you're saying. Remember, if it's the doctor, it's going to be the same person who's going to be testifying against you at the hearing. So that's kind of a strange situation to be in, to be receiving information about your rights from the person who has taken them away and who's going to testify against you. I think that would be sort of an unusual way to look at it in terms of being fair.
But also, in terms of time, there's no accountability. As we tried to explain, rights advice isn't just a five-minute little deal where you walk in and say this information. There can be two hours involved in an interview and a great deal of paperwork. If someone is involved at the hospital, they may not have a lot of motivation to not discourage someone to go to a hearing, because it's going to mean a great deal of work for them.
The Chair: Thank you for your presentation.
Mrs Boyd: Just as a point of information, Mr Chair, I understand that the Whitney Block has been evacuated because of a gas leak and that may effect the provision by legislative counsel of the amendments for all of us because it's the legislative counsel that's over there. If that should happen, I think we need to be aware of what's going on during the afternoon. It may prevent all of us from getting our amendments in this afternoon and we might have to do it tomorrow morning. I just wanted everybody to be aware of it as soon as they could because apparently they don't know whether they will be able to go back to their offices.
The Chair: Thank you, Mrs Boyd. The clerk will get in touch with legislative counsel and try to get us an update. Mr Ramsey doesn't have a canary with him or anything like that, does he?
Mr Ramsay: No, I left my bird at home.
NATIONAL TRUST CO
The Chair: Our next submission is from the National Trust Co, Mr Glenn Davis.
Mr Glenn Davis: Hello again, Mr Chairman. I was getting a little concerned there when I heard about the natural disaster following me wherever I go. I take it by now you are all satiated or soaked, at least, in the nuances of this legislation, so I'll be a little briefer on some of the things I had to say when I was first here and I'll amplify other areas which have had a chance to gel.
I started off the last time I was here by mentioning that trust companies in general -- our company is merely one of several -- deal with vulnerable and incapable people in many different ways. Many of them are depositors with us in our retail branch, so we have a lot of activity with families and with powers of attorney in our branch system. Secondly, we are a creditor and mortgage lender to people who lose their capacity to manage their affairs. Thirdly and most importantly from my perspective because I work in the trust department, we act as power of attorney for individuals; we act as guardian of property, or formerly as committee of property, for individuals; we act of course as trustee and executor of their estates when they ultimately pass away. We also manage individuals' affairs while they have all of their faculties, for whatever reason; if they choose to have us be a portfolio manager, we carry that function out.
One of my themes that I want to leave with the standing committee is that perhaps because these functions of a trust company and the trust industry are not well known, there's remarkably little reference to trust corporations in the legislation. One of the themes I want to establish is that trust companies should be treated differently than lay persons, if I can call them that, because many of the concerns about protection of the incapable or the vulnerable person from other individuals are not there when you have a trust company on the scene.
We are all aware of situations, I think, where a family member has abused the finances of somebody for whom they hold power of attorney, and of course a lot of the protective devices are designed to prevent that prospectively, make it visible while it's happening and provide mechanisms to fix it after the fact.
Where a power of attorney, for example, has been given to a trust company, it is the trust company, the corporate entity, that has the discretion to act; not the employee administering the account, not the branch teller, not the branch manager -- the corporation. We are required, for example, by the Loan and Trust Corporations Act to have in writing policies delegating from the board of directors to management how discretionary decisions are taken. The one thing the trust industry is good at is writing policy and procedure, how we look after people's money; we've been doing this for over 100 years. So to me, for example, it makes no sense that if we have a power of attorney and we're running somebody's affairs and they become assessed as incapable, all of a sudden all those arrangements are crashed. It just doesn't make any sense to me.
I can understand the desire to have a public office second-guess the appointment of a family member, because family members go through changes, sometimes catastrophic changes -- marital breakdowns, substance abuse, geographic relocation, mental health problems or physical health problems of their own -- that might make them unsuitable. Corporate entities of course don't, so they should be treated differently on a policy basis.
Even in the case where corporate entities have merged or amalgamated -- I'm thinking of the Crown Trust situation, for example -- nothing has happened to the trust accounts. They've been transferred to another trust company to be administered on an agency basis, so the clients' money and property don't go awry.
In the last year or two, especially with the increased pressures on the public guardian and trustee's office, we have experienced a very sensible, practical approach, in that people who want to dump their problems on the public guardian and trustee's office are encouraged to go back to private industry if they have the means to pay for it. Why should the public office take on these accounts if they can afford to have somebody do it for them? I think that's a sensible theme in today's government period of restraint, and that kind of practical thing can be enhanced through the wording of the legislation.
Very recently, something came up that gave me great concern so I dwell on it perhaps a little too much in this submission, but it's very common in our industry that we are given an executor appointment and at the same time we get a power of attorney from the client to be used if, as and when they become incapable.
Recently, it was suggested to me that those powers of attorney are invalid because employees of the trust company have witnessed them, and this has given me a bit of paranoia. I know there has been great interest in the prohibited classes of witnesses to powers of attorney: What's the definition of a spouse? Is a brother or a sister not an eligible witness? -- those sorts of things.
I don't read the legislation as prohibiting an employee of the attorney from witnessing because I draw a distinction in my mind between the employee and the attorney, as I've said. However, I can assure you it would create havoc if we had even one court case where a power of attorney to a trust company was found to be invalid because an employee of the company had witnessed it, or two employees of the company as the case may be.
Many, many of our clients have chosen the trust company, the trust industry, because they have nobody in terms of friends or relatives they want to burden with it or nobody who is capable or nobody they trust. Any risk to that arrangement is doing an enormous disservice to those members of the public, and we have hundreds, if not thousands, of those sorts of attorneys in place.
If you could find time in your busy schedules to slip in some kind of qualifier or a statement that nothing in this legislation would mean an employee of an attorney could not be the witness, that would be enormously appreciated by our industry.
1410
Most of you will be through your own affairs that you can name the executor and trustee in your will. You can select the person who is going to run your affairs when you die. If you haven't given a power of attorney, you do not, apparently, have the same right to name the person who's going to run your affairs if you become incapable. This, to me, seems a curious gap in our law and in our abilities to exercise personal freedom.
I have talked to trust company clients who would say: "I don't feel like giving anybody power of attorney, quite frankly. I don't trust anybody to have that sort of unregulated power. But if something did happen to me, Mr Davis, I would want the trust company to be put in charge of my affairs and run my affairs because then they'd be under the supervision of the court, effectively."
But I know of no way presently to make that happen. If we wait until the client loses their capacity, the trust company is nowhere on the list of prospective guardians; we're way down the line. Usually, if we're going to court, we'd have to satisfy the judge that we've asked everybody else and they've all agreed they don't want to do it. Of course, that's time-, energy- and money- consuming and is often not justified.
Again I'd suggest that when you're putting your statutory hats on, you create a new category of possible guardians, that is, simply someone who has been appointed by the client prospectively. It doesn't have to be a trust company, of course. This could apply equally to individuals. But it would be a new category of possible guardians and an expansion of the right to choose.
There is reference to appointing a trust company if the spouse consents, and this is something that I think bears contemplation. Oftentimes the mythological happy nuclear family does not exist, and in cases where impartiality and advocacy on behalf of the incapable person is most important, that's when you're least likely to get the spouse's consent. It's the spouse, often, that the vulnerable person has to be protected from.
If you view a trust corporation as virtually the equivalent to the PGT, as I do, because they are basically incorruptible, professional and experienced, it makes sense to me that you would not want to give the spouse the right to keep that sort of impartial person out of the client's affairs.
I'm not sure exactly how you deal with legitimate family concerns about retaining control and those sorts of things, but it's a little too strong to say the possible exploiter controls the appointment of the protector.
One other clarification that again would help and that I don't think, with all respect, was in the mind of the drafters when the legislation went through: The trust companies fulfil so many different roles with incapable people that I'm concerned we fall into the category of "service providers." We often wind up not only as the landlord of an individual but as the employer of their nurses, housekeepers, gardeners, chauffeurs, directors/officers of their companies, lawyers, accountants. We virtually are their substitute decision-maker for every conceivable role except health care. If we are in those roles, if we are a service provider, there's this conflict issue that's worried about.
Again, I think the solution goes back to recognizing that, with few exceptions, trust companies are not persons, and if you tinker with the definition sections, you may be able to make it clear that it's not a conflict.
In the last few weeks, other issues that I haven't expounded on in writing have cropped up that are germane of wide application and not limited to the trust industry, and do raise great concerns on a policy level and are therefore worthy of perhaps putting back into the statutory mill or the regulation mill.
The first item is that of compensation. There is a regulation now which prescribes the presumed compensation for guardians. I believe it was intended to reflect the practice in trust-type estates with which we are very familiar, namely, a percentage of value of assets on receipt and distribution or disbursement. However, when we actually went to apply these rates to a few situations, we found out that it wasn't clear enough, if I can put it that way.
For example, if one of you individuals were rendered incapable and it was decided that we should apply to be put in charge of your affairs, we might have to go out and collect a large quantity of stocks and bonds and investments, mortgages perhaps, mutual funds, GICs. Strictly speaking, we would be paid nothing for doing all that work because that is not a "receipt" in the context of estate administration. In the normal post-mortem situation, a receipt is coupled with the word "realization," which usually means sale. The traditional way we run a trust estate, at least at our company, is that when we sell something, then we get 2.5%.
Similarly, when the client has made a will and there's a distribution to beneficiaries, that's when we get paid, on a distribution. In our internal discussions, we've contrasted that with the fact that the incapable person has died and we are turning the assets over to the executor. That's not a distribution in our lingo, and accordingly it's arguable that we would not be entitled to any payment for doing all that work.
That doesn't make sense on a business basis. I don't know if that was what was intended. If the government of the day is going to venture into trying to clear this stuff up by regulation, I guess on reflection we need a little more detail. It would probably be helpful.
The same thing applies of course to lay guardians, who have no experience in this. If they opt to accept compensation, they are held to a higher standard of care, which is logical and proper, in my view, but a little clearer how-to manual would probably be helpful.
The second related issue that has cropped up and that we focused on a quite a bit is that of fiduciary investments. I hope when you get to your line-by-line analysis, you'll have a chance for some more input from the PGT. Mutual funds in particular are an extremely common investment these days for everybody, including people who subsequently become incapable. From a trust lawyer's perspective and I think from the PGT's perspective and from recent case law perspective, mutual funds involve a delegation of decision-making about investments. The investor has turned the investment decision-making over to the fund manager, which is prudent, reasonable and a good thing in many, many cases, but from a trust law perspective it involves an unacceptable abdication of control.
On a policy basis, I don't think personally that the SDA goes far enough by exempting investment from trustee act restrictions. You need to grapple with the issue of whether you want to sanctify this abdication; otherwise, I think -- correct me if I'm wrong -- you're forcing the PGT to get into reviewing and perhaps even objecting to guardians maintaining mutual funds as an investment, which would have a huge impact on the average lay individual. That's open to a policy interpretation in their office of course.
We have the same problem. When we become a guardian and we're trying to assemble a management plan for our new client, we're very sensitive to what the judges say about abdication of fiduciary responsibility. Does that mean we should be proposing to sell these mutual funds? It brings the whole issue back up for reinvestigation.
1420
This, as I say, very recently has become a hot issue again and there's quite a wide variety of opinion about it. For example, the other side of the argument is that trust law is supposed to encourage trustees to do what reasonable business people do and reasonable business people do invest in mutual funds and therefore, it's not a violation of a reasonable business person standard.
However, we do have several recent very troubling case decisions, some of them involving trust companies and, given what might fairly be called judicial conservatism on these things, it wouldn't hurt if you can pin it down by statute.
Number 3 in penultimate points here, the interrelationship between compensation and trustee investing is a very sensitive issue. In large estates, for example, the courts have often permitted lay executors to hire outside investment counsel, even trust companies, have them manage the portfolio because of their expertise, experience, safekeeping and all those good things, and then they have permitted the executors to disperse those expenses as a cost of the estate rather than forcing them to deduct it from their own compensation.
The same thing applies square on in administering incapable persons' affairs. If National Trust, for example, were appointed as your administrator, or guardian I should say, and we invested or retained all of your existing investments in mutual funds, what would the average person in the street think should happen to the compensation that we were able to claim? Should it be reduced, should it be increased because we're taking greater risk or what should happen?
It's a very dicey recent issue, especially given these recent court cases. If you want to encourage lay executors to invest in mutual funds, the answer's fairly clear. However, it's a policy problem.
My last point are the so-called anti-ademption provisions. This is a very technical point. I think Barry Corbin gave you a fairly extensive paper on this topic. This again represents an administrative nightmare more so for lay guardians and attorneys than for trust companies, but the policy problems are very great here. This is where you're talking about if the guardian decides that they'd have to sell the cottage to pay for mom's care, and then after mom's death, we dig the will out and find out that the cottage was given to sister Sue. What happens?
When people wrote their wills, of course, anti-ademption provisions of this statute were not in existence and therefore couldn't be taken into account. It's a very, very thorny issue. From an administrative point of view, it's very difficult too. Do we set the money aside? Do we compound the interest? Do we forget the interest? I urge close attention to Mr Corbin's submissions on the point because they may raise more questions than he provides answers, but it's one of those nightmares that's going to get lay administrators in problems distinctly.
Those are all my points, ladies and gentlemen. I'll be happy to deal with any questions.
Mr Parker: How much time have we got?
The Chair: The Liberals are caucusing, so they'll be back, but you have about two minutes.
Mr Parker: I wouldn't want to take their time. That wouldn't be fair.
Thank you very much for your presentation this afternoon and for your very helpful comments. You're right, you've gotten into some pretty arcane and esoteric areas here. It'll make your brain hurt if you try to get too deeply into some of this stuff. In the time available let me just address one: Your recommendation concerning prospective consents to appointment as guardian. Frankly, I thought we did a fairly decent job of addressing that whole area in section 11, which amends subsections 17(4) and (5), which requires that when appointing a statutory guardian you would look at someone who has the ability and is suitable to manage the property and that the public guardian and trustee take into account and consider the incapable person's current wishes, if they can be ascertained, and the closeness of the applicant's relationship to the person.
Bearing in mind here that we're dealing with a situation where we're all forced to predict into the future as to who's going to be suitable at the time, we have to balance off certainty on the one hand versus the flexibility to choose the right person at that point in time on the other hand. Are you uncomfortable with the way that has been handled in the bill?
Mr Davis: No, I'm not being critical of the way the bill is presently structured, I'm proposing a new and to me somewhat novel concept because I recognize that if a client has given a trust company a power of attorney, they would have, I think, first priority to become guardian.
I'm addressing the group of individuals who haven't given anybody a power of attorney but can identify who they would want appointed as their guardian if they became incapable, just as they can identify who they would want to be executor if they died. If they were able to sign a piece of paper saying, "If I become incapable, I want my friend Mr Parker to be my guardian," and if that happened and Mr Parker then had first priority, that I think would represent a big step forward in personal choice. That's all I'm saying.
Mrs Boyd: On the issue of witnesses, I think you're right. I mean, it might be serious, although certainly employees of lawyers have always witnessed and I think people are used to it, but you say there have been questions raised about the validity. Is that because the person of the employee is seen as being the same as the person of the trust company? Is that the issue there?
Mr Davis: I think the issue is sensitivity to self-dealing and conflicts of interest. Just as we don't want a beneficiary to be the witness on a will and we don't want the attorney or their spouse to be the witness for the power of attorney; there's this feeling that an employee of the trust company is somehow too closely affiliated and therefore it may violate that self-dealing threat.
Mrs Boyd: Yes, it's a problem, because it might be an employee of anybody who became an attorney. For example, if it did happen to be the lawyer, it might be an employee; if it happened to be a neighbour, it might be someone who worked for that neighbour. I mean, it is a bit of a problem. So you think the issue would be just somehow making it clear that an employee of the proposed person could be, or --
Mr Davis: I'd like to confine it, if I may, to employees of trust corporations. Trust corporations are very heavily audited and regulated.
Mrs Boyd: So that's where the safety aspect comes in.
Mr Davis: Yes. Taking up your point, I can see that if I was the son of a person and I had a business, I could prevail upon two of my employees to witness this document from Mommy and that would be potential abuse to be stopped.
Mrs Boyd: So it's specific to the trust situation, where there are all sorts of checks and balances.
Mr Davis: Yes, a trust company of course is the only corporate vehicle that can act as a trustee, but it's a one-off situation, but it would just be a nightmare if some judge formed that view.
Mrs Boyd: Your sort of recent issues are certainly interesting. Your issue 3(d) has been mentioned before. That has been seen as an issue and I don't know whether the government is planning to bring something in to deal with that, but the others I don't think we've heard of before. So it's helpful to have your view on that and it would be helpful to get some advice from the public guardian and trustee on sort of their experience around that.
I can keep talking if you'd like.
The Chair: No, thank you. Thank you, Mrs Boyd.
Mr Davis, thank you very much for your presentation.
1430
We can deal with this right now. The Niagara Mental Health Survivors Network made a presentation before this committee and at that time indicated to the clerk that it wanted us to consider reimbursing them for mileage and parking from the city of St Catharines to Toronto. They have put it in writing by letter dated February 13, 1996. It's $85.20 at 30 cents per kilometre for mileage and parking was $14, for a total of $99.20. What is your pleasure?
Mr Marchese: I move that, Mr Chair.
Mrs Johns: Do we have a policy on that as a government -- what we do with respect to this?
Clerk of the Committee (Ms Donna Bryce): They're considered on a case-by-case basis and it's up to the committee to make that decision; so no, there isn't.
Mr Marchese: We've always done it.
Mrs Johns: Have we? Okay.
Mr Gary L. Leadston (Kitchener-Wilmot): Mr Chairman, I think we should develop a policy, because then what would prevent any of the groups writing the committee that appeared in Thunder Bay and Ottawa and travelling from, say, Toronto to Thunder Bay to be heard and requesting reimbursement?
The Chair: Yes, except we're dealing with it case by case and we'd just refuse to pay it.
Mr Leadston: I think if you deal with one then you set a precedent and then you have to treat them all the same, to be equal and fair. I think we should deny this request.
Mr Marchese: I would recommend that we approve this and that if we want to have a discussion, subcommittee might talk about it, because some members don't know the practice that we have adopted in the past, which all parties have agreed to. But it might be useful for us to have that discussion as a committee at some point, but I think we should approve this request and move on.
Mr Leadston: I would prefer, then, if you would defer it to the subcommittee. I'm not aware of the past practices and in fact it would come back to us.
Mr Marchese: I appreciate that, but if Ms Bryce could speak to what's been happening in other committees, because we've had these discussions and then we've approved them. We could go over these again, but if you might speak about general practice in other committees, Ms Bryce, that would be helpful.
Clerk of the Committee: General practice is they are case by case. As people make requests to the committee, the committee discusses them and makes decisions.
Mr Leadston: Are all individuals or groups that appear before all the standing committees aware that their expenses may be paid?
Clerk of the Committee: No, they're not made aware of it in advance.
Mr Leadston: That's what I mean. I think there should be a policy. I won't support the motion. I'll support that you take it back to committee and come back with some recommendations.
The Chair: Mr Marchese, that's not technically an amendment, but to solve the problem -- I don't want to spend a lot of time -- should we refer it to the subcommittee where Mr Tilson will be there and probably familiar with the practice in the past?
Mr Marchese: Yes.
The Chair: Okay. We're referring it to the subcommittee and we'll deal with it at our next meeting.
COALITION FOR LESBIAN AND GAY RIGHTS IN ONTARIO
The Chair: The next submission we have is from the Coalition for Lesbian and Gay Rights in Ontario, Nick Mulé. Welcome.
Mr Nick Mulé: Good afternoon. Thank you for having me here. The emphasis in the deputation will be on that part of Bill 19 that seeks to repeal the Advocacy Act. That's what I'll be presenting on.
In 1991, the Coalition for Lesbian and Gay Rights in Ontario, also known as CLGRO, supported the former NDP government's Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons. Our support for this act was based on its recognition of the true state of vulnerability a person may fall into due to one incapacity or another.
The lesbian, gay and bisexual communities are a population that exist on limited rights in this province. Additionally, we have witnessed, lived and died through the devastating effects the AIDS epidemic has had on our communities. Bill 74 served to protect vulnerable people by informing them of their rights and intervening only when appropriate.
Health Minister Jim Wilson has stated that by repealing this act, a level of bureaucratic government would be eliminated. There would be less intervention by the state and decision-making would return where it belongs, to the family. What Mr Wilson and his government fail to understand is that not all people have positive, trustworthy relationships with their families and, as with child abuse, state intervention is sometimes required, particularly with vulnerable adults.
We have 10 points we're putting forward with regard to the repeal of the Advocacy Act.
Bill 19's revision of the Consent to Treatment Act, to be replaced with the Health Care Consent Act and its amendments to the Substitute Decisions Act as well as additional acts in respect of related matters, effectively removes the option truly vulnerable people needed to learn of their rights, assess their needs and make informed decisions.
The repeal of the Advocacy Act may directly affect those lesbians, gay men and bisexuals who have not delegated a power of attorney, are not in a recognized partnered relationship with a significant other of one year's duration or longer, are alienated from blood relatives and are incapable of determining their health and wellbeing provisions.
The Advocacy Act takes culture and traditions of vulnerable persons into account, enabling them the opportunity to make autonomous decisions with dignity. This is very important to the lesbian, gay and bisexual communities in the face of adversity towards our culture and traditions.
The act allows vulnerable persons, inclusive of lesbians, gay men and bisexuals -- for example, people living with AIDS, those who are mentally, emotionally, physically or psychologically incapacitated -- to organize much-needed mutual aid associations with the help of government. The removal of this opportunity will only leave these people more vulnerable.
The Advocacy Act allows for intervention in a situation in which a lesbian, gay man or bisexual person were to be pressured to enter a custodial relationship with estranged people, such as blood relatives, or in which the vulnerable person were to receive treatment deemed adverse to his or her sexual orientation, such as aversion therapy.
The Advocacy Act helps vulnerable persons secure lifestyle opportunities in accordance with their identity, for the act accountably designated a board to consist of those vulnerable communities to advocate on behalf of their peers.
The act guarantees that attempts are made on behalf of vulnerable lesbian, gay and bisexual persons whose housing in controlled access residences or facilities that are not sensitive to their needs become sensitive to their needs through the regulation of such facilities by advocates.
The presence of this act is not just another bureaucratic level of government, but rather a resourceful and helpful intervenor for people who cannot afford costly lawyers.
Importantly, this act begins to address the heterosexism and homophobia that still very much exist in this province's health care system.
Finally, the Advocacy Act allows for the recognition of alternative or chosen families in addition to traditional families.
Mrs Boyd: Thank you very much for coming and talking to us. I think in fairness we should say that some of your assumptions about what the Advocacy Act did cross over into what the Substitute Decisions Act did, or the Consent to Treatment Act, and I think we maybe need to sort that through a little bit. For example, I would say on your second page, where you talk about the act guaranteeing the regulation of facilities through advocates, that's not exactly what you mean, I think. I think you mean that the advocate had the right of entry to facilities, had the right to get information about people and then advocate on their behalf. They didn't actually regulate the facilities, but they indeed could advocate on behalf of the individual who was in the facility. So I think we just need to be clear that we understand what you're saying.
You have raised an issue that is of great interest to me, your bullet point where you talk about aversion therapy being used in terms of sexual orientation. This issue around electric shock and aversion therapy has mostly been talked of in the context of a particular program in Southwestern Regional Centre which is around self-injurious behaviour by a very small number of individuals. But we did have a psychologist who came and told us about aversion therapy around sexual deviation in London and said he had literally hundreds of patients who came to his office and had aversion therapy in terms of sexual deviation.
As I understand it, it consists of, any time a person thinks of the particular sexual object that arouses them, an electric shock to their system to discourage them from being excited by that particular thing, whichever it is. In fact, because this act, Bill 19, would allow aversion therapy on the request of a substitute decision-maker, you have raised an issue that's a very important issue for us to consider. It has not been the major focus of a lot of the attention here, but I do know that there are those who believe in aversive behaviour modification who advocate very strongly in terms of changing people's sexual orientation through aversion therapy, and in fact in a lot of the cases that we hear about where people write about having been cured of their homosexuality, that indeed is one of the methods used by private psychiatrists, on their own consent.
But what we're talking about here is a completely unregulated ability of substitute decision-makers to allow treatment of this sort for people who are not in a position to have capacity for consent. I'm glad you raised it because it's an issue that most people don't know about or don't talk about. Have you run into areas where people have had this suggested to them, where people have suggested that this might be an option?
1440
Mr Mulé: We have and it's something that kind of crops up here and there. The problem with that is that it tends to happen to people who are not well supported by those in their circles. In essence, they're people who are very much closeted and only getting negative feedback from those who just happen to be in their circles and then end up being their substitute decision-makers, and that's the frightening part of it. What's most angering about that form of therapy is that, scientifically, there's nothing to prove that one's sexual orientation can be changed, despite the fact that psychiatrists or psychologists still engage in this.
Mrs Boyd: In fact, if you change behaviour by giving people a shock every time they think of the other behaviour, it really is questionable, isn't it, as to whether the behaviour has changed or whether people are simply being punished for doing what they do?
Mr Mulé: Exactly.
Mrs Boyd: I think it's particularly dangerous for people who are cognitively impaired, developmentally delayed or, through mental incapacity or brian damage, unable to exercise their wishes. It's a very, very serious issue.
Mr Marchese: I have one question, Mr Mulé. We as a government set up the Advocacy Act and the Advocacy Commission, largely made up of consumers, but other representatives of the various fields connected to vulnerability. Many of the things that it did were to do education, to do training, community development, system advocacy and hire rights advisers to give people rights in various situations. This is a very brief description of what they were doing. They didn't have much time to do all of these things, but they'd certainly begun dealing with hiring rights advisers across the province.
My view is that the state has a role to play in advocacy and indeed has a role to play with an advocacy commission such as the one we set up to do those various functions. The government disagrees with that. I would just like to know your opinion based on the kind of community that you are involved with and work with on a regular basis. Do you believe the state has a role to play in these things, in these areas, or do you believe we should be supporting other communities out there that are doing advocacy in general and leave it at that?
Mr Mulé: I think, provided that the state is able to respect the Ontario Human Rights Code and all the characteristics that are listed in there for every human being in this province, there is a role for it. Wearing my other cap, as a professional I've worked in the health care system and over the years there has been this philosophy or this approach that's been developed in which sometimes the approach is taken that the system, the physician, the institution know best for what's required for a patient, and that's sometimes at the very expense of the Human Rights Code. It's really unfortunate to see that. I think there is a role for the state to be involved with that, provided that the code is respected, that all the various characteristics that are listed in the code are respected and there is that equality put across the board. I'm basically just putting out here that the system can fail very easily, and we've heard one horror story after another of people's rights not being respected.
Mr Marchese: Yes, I agree. My sense, of course, is that such a commission would be very respectful of these things and that they come out of a field respecting human dignity, human autonomy and human rights. I personally don't see that kind of conflict with respect to that commission.
My question was more of a general nature: Do you believe that the state has a role to play, or do you think we should just give a few bucks, if we have it, to a few community groups that are doing advocacy out there to do their job? Do you think that's sufficient? Do you think those organizations have the power, in terms of right of entry, to be able to get into institutions and deal with abuses?
Mr Mulé: No, they wouldn't have the power. I think you'd have to develop something quite complex if you were trying to get it out to as many communities as possible across the province, and it would take a lot of money. If you're saying a few bucks, it's not going to go far enough. As long as a commission would be in place, it would need to have representation from the various communities in order to function appropriately.
Mrs Johns: I just wanted to ask you a question about your second bullet point, which is basically the gay and lesbian people not having a partner and not wanting to choose their blood relatives. In the Health Care Consent Act, as I think you're saying in your last point, last bullet on the second page, you are aware that you as a person can choose to have a friend chosen to make consent decisions for you under the Health Care Consent Act, or that friend can come along and say, "I'd like to be the person who makes decisions for my friend as a result of his being incapable to make decisions." So we have said that it doesn't always have to be the blood relatives. Someone else could come along who chose to go to the Consent and Capacity Board and get that approval to be able to make decisions for a person who would be not a blood relative. Is that what you're meaning by the last point? Is that why you're saying that you're fairly happy with that aspect on the last page? It seems incongruous; I'm not understanding.
Mr Mulé: We are happy with that as long as people are aware of it. What we're trying to highlight there is that the very role of the Advocacy Commission would have been to inform people that they do have that option. I don't have the greatest level of confidence that when someone is in an incapacitated state within the health care system, they're going to be given all the free options. What I have seen in the system is that expediency is first and foremost. What people know in the health care system is traditional family relations, and they go through that route. Sometimes people, when they're incapacitated, can't be very up front about exactly what their needs are. The situation of our community is that some of them cannot be very open and out about who they are in that system. So that's where it becomes conflicting.
Mrs Johns: From the very beginning of these hearings, when the minister spoke to kick it off, I think Jim Wilson said at a particular point that we were looking for a way, we were here to listen to what people had to say about how rights advice should be given to people, what the needs were, how we were proceeding through it. All of us have come up with maybe a different way. We're all considering that and we'll be debating what may be the best approach to it next week.
I think that we're all cognizant of the fact that in some way people have to know of their rights. There's a group of people out there who believe that the health practitioners can do it, and there's another group of people who believe that they may not be able to do it, and another group who believe that if there's some coaxing, they will do it. That's what we're starting with at the beginning of next week, to try to ascertain how we can move forward to make sure that people are getting the rights we all would like everyone to have. So I appreciate you bringing that to our attention.
Mr Ramsay: I'd like to thank you very much for your presentation. Since I've just arrived, I will go over it tomorrow and we'll use it in our consideration for amendments in our deliberations next week.
The Chair: I thank you very much for attending.
Mr Mulé: Thank you for having me.
The Chair: Now, I believe that our 3 o'clock submission, the Thomas More Lawyers' Guild of Toronto, is not here at this time. Oh, they are here? Well, let's move right on with them then. That's great.
While we're here, I mentioned we'd need a starting time for Monday. I was going to suggest 10 o'clock for Monday morning. Is there any objection to that?
Mr Ramsay: I'd like to move a motion because of the pending strike situation. I don't know what the committee organization, the Legislative Assembly, might be doing as a contingency plan. The 10 o'clock would be fine, but if there was a strike situation, I think we'd want to assure that there would be at least one member from each of the parties present before clause-by-clause commenced.
What I'm getting at is, what if this building is picketed, for instance, and members don't feel comfortable in crossing those picket lines, and yet because the Legislative Assembly staff is not in the same union and this committee might proceed, it really puts some members of the committee in a predicament.
So I was just wondering. That's one motion I'd like to at least put on the record, and maybe there'd be some discussion come from that.
1450
The Chair: I'm sure there will be considerable discussion. Yes, Mrs Boyd.
Mrs Boyd: I think safety aspects might well be a consideration as well, Mr Chair.
The Chair: What kind of aspects?
Mrs Boyd: Safety aspects, in terms of if there is a very strong effort to prevent -- I mean, frankly, this would probably be of equal if not more concern to government members than it would be to non-government members in terms of the safety aspect of getting into the building. I'm sure the security recommendations will be that if anyone senses or feels they're in any danger that they not cross lines. I think those would be the instructions that would be given from a security point of view to all members of the Legislature, and indeed even from the Speaker, and that should be a consideration in terms of the discussion.
The Chair: I don't think this is an opportune time to deal with your motion. We'll deal with it later today.
THOMAS MORE LAWYERS' GUILD OF TORONTO
The Chair: Welcome. This is the Thomas More Lawyers' Guild of Toronto.
Mr Hugh Kelly: My name is Hugh Kelly and my colleague is Mr Phil Horgan, who will start off to address you today.
Mr Philip Horgan: I've passed up 30 copies of our brief, which due to time constraints we brought with us today. Perhaps it would be helpful to have the members of the committee receive those as we go through it. We won't be reading from the brief. We'll be highlighting various packages or parts of it, and perhaps it could be reviewed later by members of the committee during their own deliberations.
The Thomas More Lawyers' Guild of Toronto has roots in Toronto and area since 1925. It is a non-profit corporation which has support from approximately 400 lawyers in the Toronto area. The guild's mandate includes encouraging the discussion and study of jurisprudence with a view to making the Catholic perspective known and relevant to the administration of justice and the daily practise of law. In recent years, our guild has hosted medical-legal conferences: in 1992 on bioethics and new reproductive technologies, in 1993 on euthanasia, and we presented a brief to the Canadian Senate committee on euthanasia in 1994 prior to its report in 1995.
With respect to Bill 19, the guild considers many of the provisions in the new legislation to be an improvement over the existing legislation. Specifically, the promotion of the role of the family, the simplification of procedures for appointing substitute decision-makers, the removal of barriers for family input and reduction of some bureaucracy are always laudable.
Specifically, the changes proposed with respect to emergency treatment I think are an improvement, and the removal of what we would consider the normal incidents of living from the definition of treatment is a good first step in ensuring that those normal incidents of living are never denied to a person or patient in the health care system.
We will be bouncing off each other in terms of our presentation and I'll turn over the next step to Hugh Kelly.
Mr Kelly: If I could direct your attention to page 7 of our presentation, I'd now like to take you through our summary and recommendations and then we will come back to a small elaboration of some of the points.
First, we believe protection should be afforded to ensure that the basic incidents of living, including nutrition and hydration, should never be denied to a person on the grounds that it is treatment.
Secondly, provision should be made for notification of the patient and his or her family on a determination that the patient lacks capacity for decision-making.
Thirdly, although it may be preferable to establish a minimum age for an absolute requirement for parental consent for medical decisions, at a minimum the act should establish a rebuttable presumption against capacity for children below the age of 16, together with some provision for notice to parents or the custodial parent, as the case may be, in the event there is an attempt to rebut that presumption.
Finally, family members should be accorded notice of an application on behalf of an individual or at a minimum be provided with notice and the right to participate in any hearing before the Consent and Capacity Board in order to provide recourse to family members in applications before the board.
Mr Horgan: If we could then turn to the body of our brief, commencing at page 2, perhaps Hugh can continue on with that part.
Mr Kelly: The first issue we address is the issue of basic necessities. We include in that nutrition and hydration. The reason for our concern arises because there is a power by regulation, at least theoretically, to exclude nutrition and hydration from personal assistance service, thereby permitting it to become a matter of treatment. In our judgement, that should never be possible. The issue of hydration and nutrition should always continue to be a matter of personal assistance service, and that is the basis of our first recommendation.
Mr Horgan: Turning to Roman numeral II, the first three paragraphs discuss the issue with respect to notice. Bill 19 doesn't establish specific rules for determining capacity. Those issues are left to clinical practice. The assumption underlying that scheme is that a practitioner, which is a widely defined term, is capable of assessing that capacity without bias.
Moreover, the problem is that there is a difficulty in that notice need not to be provided to that patient if in fact they are deemed to be incapacitated. We'll be dealing with this in the procedural safeguard section of the brief as well, but it seems to me a simple measure to provide some notice for that individual and his or her family in order that they may have recourse to the curative provisions of the act.
The balance of our submission in Roman numeral II deals largely with this notion of presumption and the presumption that is being established by subsection 3(2) in favour of competency for all persons, including children. I'll try to organize my thoughts in six different points.
First, subsection 3(2), in conjunction with subsection 9(1) of the bill, does not include any requirement for a parent's consent, let alone even a parent's notice, of decisions that may be made by a medical practitioner. In effect, that establishes, in our view, a false presumption of competency in terms of children's or early teens' ability to make an informed consent.
Without the parent's involvement or in fact notice being given to a parent, a medical practitioner may be lacking in terms of crucial health information, or the child in dealing with misunderstanding risk factors for a proposed course of treatment.
1500
As we've set out on page 4 of the brief, it leads to an inconsistent application by this Legislature of various other ages for responsibility or for decision-making, many of which have to do with the health and safety field.
We talk a little bit about the cases, on pages 3 and 5, of the Supreme Court of Canada: B(R) v The Children's Aid Society of Metropolitan Toronto, from January 1995, which commented on the Child and Family Services Act and the fact that although that act was deemed to be constitutionally acceptable, it also was found to be such because of the various safeguards incorporated to allow for parental rights and parental notice and a recourse for parents to redress that which may be performed or pursued by a children's aid officer or worker. So there's a concern there about whether in fact the provisions of this act may be found to be unconstitutional.
It's not included in our brief, but in the initial reading of the legislation from 1991 with respect to the Consent to Treatment Act, the initial first draft of the bill incorporated a presumption for incapacity for those under 16. On the second reading of that bill, it was removed.
In effect, the concern that we have is that in order to avoid the bill or the act being found to be unconstitutional as an unnecessary intrusion into a parent's section 2 rights or section 7 rights under the charter -- section 2 being freedom of religion, section 7 being freedom of the person -- that in effect giving a presumption in favour of capacity to a child under age 16 reverses an onus or puts an onus on a parent or on some other party to try to rebut that presumption.
Finally, from a policy point of view, the concern that we have, as you should have, as stewards of the health care system in Ontario, is a concern that children making these decisions without recourse to their parents may lead to additional cost.
I'm trying to put this into an example format. If a child broke his or her nose playing road hockey and needed that nose to be reset, possibly under anaesthetic, conceivably that 15-year-old child could go through that operation, as long as the medical practitioner was satisfied that he or she was capable. But it seems to me the involvement of the parent at that stage would be helpful to know previous medical history in far greater detail than what the 14- or 15-year-old child may know, and the risks involved with an anaesthetic procedure. There are numerous examples. I throw that one out perhaps to give some flesh to the bones of what we're talking about.
In effect, our concerns can be addressed rather easily. It seems to me that you can incorporate a presumption in favour of incapacity for a child aged 16 and under. In fact, many parents, including this one, would probably mandate that actual consent be obtained if a medical practitioner were to take steps involving my child. Perhaps being an overbearing parent, I would expect that perhaps until age 18. Nevertheless, it seems to me at a minimum that presumption of incapacity for children under age 16 is a necessary safeguard that should be incorporated into the bill.
Mr Kelly: Recognizing that the committee has probably heard in other forms much of what we have to suggest to you, we have consciously tried to limit our presentation to what we think are perhaps a couple of key points.
The final one no doubt you have already heard about before and it flows from some of the points Mr Horgan was making a moment ago; that is, the question of notice to the support mechanism for patients in proceedings before the Consent and Capacity Board. We have recommended, as I noted at the beginning, that notice be required to be given, which in our view is consistent with the concept set out in the purpose of the bill, clause 1(e), "to ensure a significant role for supportive family members when a person lacks the capacity to make a decision...."
We believe that for consistency with that concept, the supportive mechanism for a patient, whether that is a parent or a child, or in appropriate cases siblings or other relatives who form part of the person's family constellation, where known, those persons should be required -- not simply permitted -- to be brought, or at least invited to come, before the Consent and Capacity Board.
Our purpose for suggesting that is that the members of the support group then are in a position to provide some assistance to the board in making its decision. We are not suggesting that in every case that support group will necessarily provide information or will necessarily come in every case, but they are persons who have relevant information that would be useful for the board to make its decision.
Finally, there is provision that the board can sit alone; that is, a single person. Based on our experience in dealing with this kind of application, we favour an obligation that, with relatively minor exceptions, that board should be composed of not less than three, of whom we believe one should be somebody experienced in the capacity issue, such as a qualified medical practitioner, and another should have adequate legal training as the sections now provide. We do not believe it is in the interests of those who will come before the board that the issue of expediency should determine how those hearings are conducted, but rather that it should be done by a panel of three.
That concludes our formal presentation to you. We would be delighted to try to assist in answering any questions the members of the committee might have.
1510
Mrs Johns: Thank you for your presentation. Some of these items we have heard before, but we appreciate being reminded of them.
We've had lots of talk about the age issue, as you can well guess. We had a presentation this morning, which was a group of lawyers again, and they were talking about the age issue and the 16 issue. They were talking about the case of Sheena B., Re. I'm unsure about how you categorize these. I think you're quoting it here when you're talking about four of the nine judges, in the last paragraph on page 3.
They suggest that there's a very dissenting vision from that case and that four of the judges took the stand that you're basically taking and five took the other view. The other view was a definition where they drew a distinction between infancy and children at different ages. I believe the judge who maybe has the opinion that's the most different from the one you're quoting is --
Mr Kelly: L'Heureux-Dubé.
Mrs Johns: L'Heureux-Dubé. They didn't have time to explain the difference in the judgements and I was wondering if you could do that in a pretty short style explaining why there was the controversy between the four and five judges in that issue.
Mr Kelly: The simple answer is it is not possible to give you something short. The judgement runs quite extensively and there are some very subtle differences. It turns on the interpretation of the charter rather than the individual statute. In this case, it was the Child Welfare Act, subsequently replaced by the Child and Family Services Act. The common thread, though, that emerged from that, which we are urging on this committee, is to recognize that all the judges appear to have recognised there is a right in a parent that is not an absolute right, but is a relative right relative to the circumstances and relative to what society at large is prepared to accept.
There are clearly differences between the approaches the judges make and, I'll be quite honest with you, I'm not quite sophisticated enough to be able to understand all those distinctions to be able to try and explain it simply. Given about two weeks, I could probably come up with something that would be easier to understand.
Mr Horgan: If I could assist a little bit, I'm not in much of a position to comment in deep fashion on the case. However, let's take a look at the provisions. In the Child and Family Services Act, some of the judges found that it infringed constitutional protections afforded parents. However, the legislation was saved because there were remedies available to the parents through a court application proceeding which incorporated duties of fairness and so on to get that control or consent capacity over their own children.
You don't have that in Bill 19. In effect, a child who we say -- if you take a look a look at other cases including the Galaske case -- the courts have found that children under age 16 are just not in that position, in many cases, to make those kinds of decisions. Mr Justice La Forest, in dissent in the case, almost speaks to Bill 19 in one of his comments in which he says, "Can you imagine any act where there wasn't something like this?" Well, that's Bill 19. In effect, there's no real protection there or no saving protection in the current bill as it's drafted which allows a parent to challenge the capacity determination of the medical practitioner. Once that determination is made, it's made. More importantly, the doctor or the medical practitioner, as that term is defined, has protection under the act with respect to liability.
Mrs Caplan: Thank you very much for your presentation. We've had other presentations before us on the issue of whether or not the law should be silent and I'm aware that common law supports the principle that children who are mentally competent should be able to consent to their own treatment. So the question becomes, how do you judge that? I was struck by the presentation from Sick Children's Hospital which used the example -- not of the child with a broken nose, but it could apply -- of a child coming in with a sexually transmitted disease where the child said they were afraid to go to their parents, didn't want them to know, were afraid even to go to their local family doctor and wanted to go someplace where they could have that anonymity because of their embarrassment or concern.
If they didn't have that opportunity to go to a doctor who could judge that they were capable to consent to that, we would see a situation where there could be very serious consequences either for male or female children from the result of untreated sexually transmitted disease.
What the doctors told us from Sick Children's Hospital was that ability to understand and comprehend the consequences of treatment varied as children mature, and therefore it was inappropriate to have any one specific age limit because it also depended upon the actual and individual situation.
I'm comfortable with the silence in this legislation on that issue because I think practitioners, wherever possible, with the consent of the child, or without the consent, try to apply reason to these situations to encourage parental involvement. I believe that's what happens in the normal course of professionalism. But where a child comes in with an issue where they specifically request anonymity and confidentiality, then there's an obligation for the practitioner to determine in their own mind whether they believe that child is understanding and can appreciate the consequences, which is the test of competency, and if they are, then they can treat that child in the child's best interest. I think that's appropriate in this legislation and I think common law supports that.
From what I've heard around the committee, there's pretty much unanimity of opinion from the committee members with that comfort, given the basis in common law and in policy. So while I appreciate your explanation and your presentation from your point of view, for myself and for our caucus we think the legislation as it stands meets the test of reasonableness.
Mr Horgan: If I could go first, we're suggesting, as was first brought forward in the first reading of the bill in 1991, that it could be a rebuttable presumption. In other words, it's something which could be challenged and if the merits of the case suggest it, then that would be possible.
Mrs Caplan: How would you protect confidentiality of the child in that situation?
Mr Horgan: I believe that in the circumstances the doctor would have to inform the child, "I'm not in a position to do this without notifying your parents unless application was brought perhaps by you or an adviser." But if I could take it a step further --
Mrs Caplan: I think that's the reason that provision was dropped.
Mrs Boyd: I think that is why the provision was dropped, that in fact children don't have the ability to do that in a way that would enable us to be sure they had an opportunity to fight that, and that's a real issue. I understand you don't want children to fight it. I think we just have to make it clear that --
Mr Horgan: Let's back up with that. If you make that assumption, then you're also giving some question as to the assumption upon the child's ability or capability to make the decision.
Mrs Boyd: No, the capability to make a decision is very different than paying the costs of doing an application.
Mr Horgan: The other point I wanted to raise in response is that the law has an educative function and it seems to me that the education that's being provided to children by the current bill is, "You can keep secrets from your parents," and the question is, is that the policy initiative that we wish to pursue in Ontario?
It strikes me that it seems to me because of the tender years doctrine and the notion that children have special needs and don't have the world experience or maturity to deal with those types of things, all we're suggesting is that the presumption be made in favour of incapacity. That's not something that can't be rebutted, but it seems to me if that's in the educative function, that's something that's not being looked at strongly enough in the bill.
Mrs Boyd: We hear you making that suggestion, but I would echo what Mrs Caplan has said, that all three parties have agreed that this is a more appropriate way to go. I'm just trying to be frank with you. At this point in time, although we've heard this argument, I don't think you have agreement around the table.
I am interested, however, in your provisions around nutrition and hydration, because I share some of your concerns around the withdrawal of those issues. I'm worried about your statement on page 2, in the second paragraph, where you're talking about such necessities should not be included in the definition of "treatment," because I think there are many situations in which treatment needs to be used to describe that sort of thing; intubation, for example, in some situations, even intravenous treatment in some situations.
Part of what we've been trying to do is figure out some way to enshrine the notion that someone will always be offered nutrition and hydration but that at some point you may cross the line into a treatment area. Some of the situations that have been mentioned have been where someone is anorexic, where someone is in a coma and is unable to swallow, those kinds of situations, in which case it would be a treatment situation. How do you respond to that?
1520
Mr Kelly: What we're concerned about in making this presentation, our principle focus, is where the patient himself or herself is incapable of making the decision and it's a substitute decider. The blunt reality is that the removal of hydration and nutrition can require a patient to starve to death. We're saying that should never happen. I don't have any ready solution for the dilemma you're describing, but if it is not treatment in the elective sense, in a sense it can be provided or not provided --
Mrs Boyd: But in fact you can do harm to a patient whose kidneys have shut down if you keep on hydrating them. All you do is create this huge edemic situation. There would be situations in which the withdrawal of hydration within a certain number of hours of the end of life might be an appropriate decision.
Mr Kelly: There would be no disputing that. Just as a mushroom can poison somebody who's in perfectly good health and you don't apply a poison, hydration can have that effect. That's not our point. Our point is that in the normal routine there will be some extraordinary exceptions, and I think we have to agree that these are extraordinary exceptions, not the kinds of things that are likely to be happening on a routine basis. Our concern is to ensure that it isn't converted into a treatment where it's inappropriate.
The Chair: I thank you very much for your attendance, gentlemen.
Mr Kelly: Thank you, Mr Chairman, for allowing us to come and present to you.
The Chair: As our next witness is not yet here, this may be an opportune time -- Mr Ramsay is not here, but I'm sure he'll be returning. I'll read Mr Ramsay's motion so that everybody's aware of exactly its intent.
"I move that clause-by-clause deliberation of the justice committee will not commence until there is at least one member from each opposition party present."
Mr Ramsay, I'm sure, will be back and will speak to it, but perhaps you would like to speak to it yourself, Mrs Caplan.
Mrs Caplan: Thank you very much, Mr Chairman. I hope there will be support for this amendment. Our concern is the uncertainty of what's likely to occur on Monday, and we want to be able to ensure that all members of committee have an opportunity to be here. I'm referring now to the possibility of an OPSEU strike. As an alternative, I know Mr Ramsay intends to suggest that the committee be held offsite so that all members of the committee can attend and the public can attend. There are many who would not want to cause any undue disturbance trying to enter the building if that were the situation. I personally would not like to be in that position of having to choose to place amendments and participate at committee and to cross a duly struck picket line.
I would hope this wouldn't be a partisan issue. That's not the intention of the motion in any way. It is to say we would like to see the committee continue if access to the building is available. As long as one member from each caucus is here, we can commence. If there is not access to the building, we could move the committee hearing offsite so there would be access, and all we would do is notify with a sign on the door that the committee was commencing. Certainly we would all like to be there to participate in the important deliberations of the committee.
That is the intention of the motion. It's one that we think is a reasonable one so as not to provoke any undue stress or tension around what will be a stressful and tense time. My own hope is that there is no strike. I want to go on the record and say that. My hope is that there is no strike and that the committee can proceed in its normal course of events. But Mr Ramsay placed the motion before the committee at this time so we could anticipate the possible and have an agreement among the committee so that the committee's work can move forward in an unfettered way.
The Chair: The clerk has advised me that this is a motion on the floor, that any member is entitled to speak to it, there is no time limit on the debate, and the motion is amendable.
Mrs Boyd: I'd like to indicate that our party would definitely support this motion. We believe very strongly that access for all members is important to be able to continue the very hard work this committee has done. This has been a very valuable experience for all of us and it would be a shame for us not to be able to continue to work together to make the kinds of improvements in this act that would meet the needs of the citizens who've come in front of us.
I think the other issue is access by the public to the debate on clause-by-clause. I think it's extremely important for us to remember that there has been a good deal of public interest in this legislative process, that many of those who are interested in participating are people who have various forms of disabilities which make their access to any kind of situation more difficult but, in the circumstance of a very strong effort on the part of OPSEU to prevent people from entering the legislative building, would certainly make it much more difficult for them. For example, it is unlikely that their Wheel-Trans drivers would cross the picket line and it would essentially prevent them from being present to hear the debate of a bill that really affects their entire way of life. I think we need to keep that in mind.
As I mentioned to you before, Mr Chairman, I think the issue around safety is an issue we should keep in mind. A legislative committee currently is looking at safety issues around the Legislature, and I do think it is incumbent upon us to be very clear that under these circumstances there are always issues of safety for anyone involved in trying to cross a duly constituted picket line. That is not in any way casting aspersions on the particular union. It is simply that it is a highly charged kind of situation and it is an issue that needs to be kept in mind.
I would say that most employers, in a circumstance where they have management people or people from another bargaining unit who are going to have to cross the picket line, will issue to their employees some assurance that they will not in any way be punished if they do not feel safe in crossing a picket line. That is certainly very often the tack an employer would take. I would hope that our employer, the Legislative Assembly, would take a similar tack. That then means that for members of the Legislature, if indeed there is a safety issue involved, it would infringe on our privileges as members of the Legislature if proceedings went ahead when we were unable to attend because of those reasons. I think it is important for us to keep that in mind as we debate Mr Ramsay's motion.
1530
Mr Ron Johnson (Brantford): I certainly want to say that I'm opposed to the motion for a number of reasons. Number one, I think it's premature. At this time there has been no strike called, and I think I can speak confidently on behalf of the government that we hope there won't be. At the same time, there has been no strike called as of right now. This motion, to me, is clearly premature.
On another note, we as members, Liberal, NDP, independent or government, have a right to access this facility. I don't care whether there's a demonstration, whether there's a strike, no matter what's going on outside, we as members have the right to access, as does the public, this facility, strike or no strike. As well, we as members have a responsibility to continue to govern the province of Ontario regardless of a strike by OPSEU.
I'm suggesting that this motion be defeated, and I'm suggesting that for a number of reasons that are very clear to me. I'm a little surprised, actually, that the opposition would be so willing to throw in the towel and quit working as a result of an OPSEU strike.
Mrs Caplan: That's not what we said.
Mr Ron Johnson: That is what you're saying. What I'm suggesting is this: We have a responsibility to the people of this province to continue to work each and every day, to continue to govern and to continue to do our jobs as MPPs. I would suggest that we reject this motion and that we continue to do what we're paid to do, and that's to continue with the committee hearings, and that we do everything we can -- if you want to talk to the legislative committee about what we can do for security for access, now that we can talk about, if you want to talk about what we can do to make sure the public has access to the building in the event of a strike. There are a number of entrances. There's a tunnel entrance from across the road.
Mrs Boyd: Not for the disabled.
Mr Ron Johnson: I am sating that there are options out there and we have to explore them in terms of right to access. But I'm not prepared to vote in favour of this motion and allow the number of weeks we've done in committee work to be delayed as the result of an OPSEU strike.
Mr Leadston: I agree with my colleague Mrs Boyd in the sense that this process has been very important, very interesting and very emotional for many of the groups that have appeared before us. When we started this process -- perhaps some are more knowledgable than others in terms of the intricacies of the rules of this particular committee, but I believe that all the parties agreed to the committee times and the commitment and the process. I believe there's a clear understanding in terms of the quorum of this committee. I also understand that the resource staff that has been with us for these weeks and will be into the next few weeks are not unionized members. Obviously, we are not unionized members. They will be here on Monday.
I'm not sure what will occur today, tomorrow or Monday in terms of forces beyond my control or capabilities. I think it would be a dereliction for myself or for any member of this committee not to be present on Monday to continue the process. People have made submissions on behalf of many hundreds and thousands of people anticipating that this process would continue, that there would be dialogue and obviously clause-by-clause, that process, next week for an outcome, for a decision from this committee. I don't think we should necessarily rely on outside forces or occurrences beyond the capabilities of this committee.
Our mandate is to this committee and to our constituents and to the citizens of this province. We have a responsibility as members of this committee. We assumed that when we were elected, and I think we have to adhere to those principles and be here on Monday at a time to be determined, I believe, by every member.
Mr Marchese: Of course we anticipated that the government would say what it's saying. And yes, we agree that the government needs to continue to do its work. That's the function of government, and we accept that. We're not throwing in the towel and that's not what either of the two speakers said, either for the Liberal Party or my colleague; that's not what they said.
We are quite willing and happy to continue with the work we've begun, but there are a few things that people have mentioned. One is that people need to have access to this building, and we know a number of people, particulary those who are disabled, who may not have access, and they, I am convinced, will want to come and see and hear the clause-by-clause once we get into that. That's an issue.
Another is the issue of safety, both for the people who want to come in and for anyone who might want to have access to this place. Because, as my colleague said, these things are highly charged, sometimes it can be a problem and it can get out of hand. We hope it doesn't, nobody wants that, but it can get out of hand.
The question is this: If there is a strike, is there something else this committee wants to do or could do? The option that was suggested is that we meet in a different site. I think that's a useful suggestion that you might want to consider, so that the work continues -- we are there to work because we want to -- and we ensure the safety of everybody and we ensure access for everybody who wants to hear these proceedings. For some of the members who haven't spoken, if they're going to reject this motion, which I suspected they would, at least consider that we as a committee have other options, that we do have the resources to make other options. That other option is to meet somewhere else where we can continue this work.
I hope the members would consider that, because I think that's reasonable and it makes sense and it would allow us to continue with our work.
Mr Michael Brown: I think it should be made very clear that we're saying we want to work and want to be able to continue with the work of this committee and we think that can happen. But given the possibilities, we are attempting to codify what is the actual practice of committees around here. The Chair normally does not recognize a quorum unless one member of each party is here. We are saying that there may be some reasons, whether of safety or otherwise, that prevent some members from being here.
In light of that, I think this is a very reasonable situation. The opposition is trying to present to you some options on how this committee can continue. I can't imagine that on Monday this committee could meet with no opposition members present and a government would be arrogant enough to go through the clause-by-clause consideration without an opposition member here. We want to work. We just want the committee to provide the opportunity for us to be able to do that under what could be difficult circumstances. Hopefully, there won't be difficult circumstances and there won't be a problem. We really don't understand what the government's problem is here.
Mr Ed Doyle (Wentworth East): I checked myself to see whether we could hold it at another location, and it was my understanding that we can meet somewhere else. However, what is to say that whoever is on strike, should a strike occur, will not remove and set up a picket line in another location, in which case we're presented with the same problem? I don't think we're going to solve anything by changing venues. If we're inform the public that we're somewhere else, the people who want to attend the committee, a picket line can be moved as well. So the same argument can be given.
Mr Ron Johnson: I want to address what Mr Brown was saying. I take exception to his saying that somehow this government will come in here, sit on this side and deal with this committee without any opposition members. I suggest to you that if we can make it, so can you. It's that simple. As far as I'm concerned, it's a security issue. It's not an issue of whether this committee should continue; it's a security issue, and security is charged with the responsibility of making sure we get in this building, and the public.
I would add that the wheelchair access, the one you're concerned about for them getting in, is at the rear of the building. We've seen a number of demonstrations, some of them violent, but that entrance is always open.
Mrs Boyd: No, it is not.
Mr Ron Johnson: It has been since we've been here, anyway. I have not seen any demonstrations in front of there. At the end of the day, it's a security issue and it should be taken up with security. I'll tell you, Monday morning I'm coming in and I'm sitting right in this chair and I'm going to be ready to sit at this committee meeting.
1540
Mrs Boyd: Mr Chair, I did say that security was only one issue.
Mr Johnson is quite wrong. In fact, the disabled entrance has been closed on a number of occasions when there have been demonstrations. I had occasion to write to the Speaker of the House about the fact that disabled people were unable to get around in this building, get in or out, when the demonstration happened on the throne speech day and when the demonstration happened on the 29th. You need to know that is not the case.
Mr Ron Johnson: Well, all entrances were closed, every one of them.
Mrs Boyd: What makes you think they won't all be closed on Monday, if this all occurs? We all are of a like mind. We all hope it won't occur. We all hope this situation will not occur and that the parties will continue to negotiate in good faith. That's a hope we all share.
But we also said that the security was only one issue. While it may not bother Mr Johnson to cross picket lines, there are other members of this Legislature who might find that a difficulty, and he needs to keep that in mind.
If we were to go offsite and, as Mr Doyle suggests, there were a picket line, it would be an informational picket only because the people would not be picketing their place of work. An informational picket is a very different issue than a picket that is a sanction against an employer. For example, if we were in a private location which was a hotel, OPSEU does not have a union in a hotel and all they could do would be to mount an informational picket, and it's a very different situation than crossing a duly constituted strike picket line. That is a very different issue. While you are right -- yes, it could be picketed -- it is a very different situation in terms of the kind of picket it is and the kind of issue of conscience it might be for some members of the two opposition parties.
Mr Ramsay: I appreciate the committee having discussion on the motion I made. Mr Johnson, say, for whatever reason, you were able to get in in the morning -- maybe because you got in before there were pickets or demonstrations going on and maybe the majority of the government members did too -- and say, because I was travelling from the north, I was delayed or took a later flight, just didn't get here before and now there were more people here and it really became a security risk for me to try to get through, whether I wanted to or not.
I just don't think it would be fair under the circumstances that the deliberations of this committee, which is the culmination of all the input we've had over the last few weeks of hearings -- we've travelled across the province, we've heard people here. We will be ready, as the other opposition party will be ready, to move amendments and to vote with the government on some of theirs and I'm sure maybe vote some against some of theirs, but to start that work. It's necessary that we all be here. We've all heard people, we've all had ideas, and under normal circumstances we would expect to be here and show up for work whenever the committee agrees to set that time, and we'd be here. But I'm anticipating that there could be some extenuating circumstances next week that we all would rather not see happen at all, and I think we need to make some sort of contingency plan.
My motion was just to try to anticipate that and prevent the government working on its own without opposition members if we couldn't get in under those circumstances. I am quite open to another venue also and have no problem in crossing an information picket at a non-workplace. If we could make that arrangement, that's fine. We'll see you there at 9 o'clock Monday, if needed.
Mrs Johns: I just want to add one thing to the comment Mr Brown made. I know I am the only member here, except for Mrs Caplan -- it was on Bill 26, but I want to remind the members that it wasn't a problem for the NDP and the Liberals to vote when there were no Conservatives in the room during Bill 26. You felt that was okay to do, and there was a vote that came about when there were no Conservatives in the room and we were therefore pushed into something we didn't want to do. That's my experience with committee, and I just wanted to draw that to your attention, Mr Brown, that your Liberal colleagues voted in a room when there were no Conservatives there.
Mr Guzzo: That was then, this is now. The rules change.
Mrs Johns: Yes, it can't be the same.
Mrs Caplan: I would hope, Mrs Johns, that you're not comparing Bill 26 to Bill 19.
Mrs Johns: I'm comparing what you said about the ability to vote when no other people were there.
Mrs Caplan: Standard procedure for committee -- and I've served as a committee Chairman; I've been here for almost 11 years now -- is that the Chairman does not commence the meeting until there is a representative from each caucus.
Mrs Johns: So you took advantage of the fact that we had a Chairman to do it to us in Bill 26?
Mrs Caplan: No, Mrs Johns.
The Chair: One at a time, please.
Mrs Caplan: No. What I'm telling you is that that's for the meeting to commence. After a caucus requests a time out, the committee reconvenes at the call of the Chair and it is the obligation of each caucus to make sure they have someone there at that point. Nothing happened that was unusual about the proceedings of the committee under Bill 26. What was unusual was Bill 26 and the process the government engaged in. But nothing that happened to you or to your caucus contravened any of the rules of precedent of this House nor the standard procedures for the way committees operate.
Committees usually do not have the tensions surround them as they did under Bill 26, and I think, notwithstanding your newness here, you would realize what an unusual situation there was in Bill 26, where many of the normal courtesies of the Legislature went by the way. This, I would hope --
Mr Ron Johnson: This is now.
Mrs Caplan: No, no. It's not a question of this is now. Listen. What I'm telling you is that the procedures under Bill 26 were all appropriate and correct. She is suggesting that there was --
Mr Guzzo: She was born on a Saturday, but not last Saturday.
The Chair: Mrs Caplan has the floor, Mr Guzzo.
Mrs Caplan: I'm telling you that the fact your caucus didn't come in when they should have following a recess was their responsibility, not the Chair's and not any other member of committee's. And that doesn't detract from the fact that under normal circumstances committees do not begin at the start of every day until there is a representative from each caucus. That's apples and oranges. We are not talking about similar situations, Mrs Johns.
What this debate is about, frankly, is anticipation of an event that we all hope will not occur, trying to facilitate the work of this committee continuing with the kind of importance we all attach to the issues before us. It's a very reasonable motion that's before us at this time. It has nothing whatever to do with changing any of the procedures of this committee. It supports a custom that is and has always been in place, although not formalized; it is something that has always been in place.
While I understand Mrs Johns's anxiety, nothing happened to her that was in any way unusual around this place, and we are not asking for anything now that is unusual in this place. It is commonplace for committees to anticipate events and try to make arrangements to accommodate that.
Mr Ron Johnson: Just come in in the morning and sit down.
The Chair: Mrs Caplan has the floor, Mr Johnson.
Mrs Caplan: I really don't understand what your anxiety is about this. This is a thoughtful, serious suggestion to allow the committee's work to continue. I must admit I'm taken aback by your reaction, Mrs Johns.
Mr Marchese: Mr Chair, I know that Nandita Sharma's here for the next deputation. I think we've made sufficient arguments on this particular motion. There's probably going to be another motion with respect to going offsite, which is a different motion, so I'd recommend that we move to the vote on this one and move on to the deputation.
The Chair: He is asking for the question. All in favour of calling the question? Carried. All those in favour of Mr Ramsay's motion?
Mr Michael Brown: Can we have a recorded vote.
The Chair: We will record it.
Ayes
Boyd, Brown (Algoma-Manitoulin), Caplan, Marchese, Ramsay.
NAYS
Doyle, Fox, Guzzo, Johns, Johnson (Brantford), Leadston, Parker.
The Chair: The motion is defeated.
Mr Parker: A motion, Mr Chairman: I move that this committee, when it reconvenes, reconvene at 10 o'clock Monday morning in room 151.
Mr Marchese: Can I recommend that we deal with the other motion after the deputation has been made?
Interjection: The motion is on the floor.
Mr Marchese: Can I ask the mover to simply withdraw it so that we can move on with the deputation. The deputant is here. We'll deal with that afterwards.
The Chair: Mr Parker, there has been a request that you table your motion. If you refuse to or you do not accede to that request, I understand that we will then have a vote on the tabling motion. What would you like to do with your motion?
Mr Parker: I move that we adjourn for a brief caucus.
Mr Marchese: Can we deal with that after we've heard the deputants?
The Chair: There's a motion before this committee for a recess.
Mrs Caplan: They can do it at any time. They don't need a motion. Why don't you just say you'll deal with the whole thing at 5 o'clock or sooner, if possible?
The Chair: How long are you talking about?
Mr Parker: Five minutes.
The Chair: We're recessed for five minutes, and we will appear back here at 4 o'clock.
The committee recessed from 1551 to 1558.
The Chair: We're resuming. There is a motion on the floor made by Mr Parker. There was a request from one of the opposition members that he defer his motion and, Mr Parker, do you have an answer to that request?
Mr Parker: I'm happy that consideration of this motion be put over until after this deputant has spoken.
The Chair: Thank you for your cooperation.
NATIONAL ACTION COMMITTEE ON THE STATUS OF WOMEN
The Chair: We can now proceed with a submission, the National Action Committee on the Status of Women.
Ms Nandita Sharma: My name is Nandita Sharma. I am a member of the executive committee of NAC.
As I am sure you are aware, the National Action Committee on the Status of Women is the largest national feminist organization with currently over 600 member groups. In the last decade, NAC has witnessed a deterioration of the status of women in the areas of economic, social and political participation.
Violations of women's rights are found in their home environment as well as in systemic legislation, policies and institutions. Of particular concern to NAC is the plight of the marginalized and vulnerable in a society which increasingly emphasizes survival for the fittest.
Those that are considered as weak and frail, according to some perceived objective, western medical assessment of mental and development functioning, are shunned further to the margins.
Among the marginalized are older women, women of colour and women with physical or developmental disabilities, as well as women that are psychiatric consumers or survivors. Being victims of multiple forms of discrimination, ie, sexism, racism and ablism, these groups of women are often easy targets of abuse and exploitation, not only in their own homes by family members and caregivers, but also in institutions by service providers and health care professionals.
In spite of their limitations, the existing Advocacy Act, Substitute Decisions Act and the Consent to Treatment Act provide the means for these vulnerable women to assert their power and exercise their rights to make decisions for themselves and protect their personal wellbeing against abuse, yet the present Ontario government is effectively stripping away the little gains that these women and our society have made by proposing the Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, Bill 19.
In NAC's view, Bill 19 represents a regressive step for Ontario by entrenching the inequities in power between these women and their oppressors. These women are essentially shunned to a world of silence, even in the face of abuse, with little recourse. The Common Sense Revolution launched by the Progressive Conservative Party of Ontario is built upon a world view in which responsibility for ensuring collective good is shifted from the government to individuals. Not only were Ontario voters promised an income tax reduction but also a recognition that more control over their social, economic and political environment would be placed in our own hands. Unfortunately, this promise has already been broken by the introduction of Bill 26, the omnibus bill, which gives immense power to the government at the expense of individual rights. The present Bill 19 represents another effort by the government to erode individual citizens' rights. This time, however, these individuals are among some of the most vulnerable groups in Ontario.
NAC would like to point out to the Ontario government the glaring inconsistency in its actions with its own purported principles. If the government truly believes in upholding individuals' rights, Bill 19 should not have been introduced. If the government believes that individual rights should only be protected and guaranteed for some and not all the people of Ontario, then the government should be prepared to explain this and take the consequences for such unfair and unjust actions.
Ample examples can be found in the bill to support NAC's position on Bill 19. The following are highlights of some of the serious concerns we have:
First I'll start with the Advocacy Act. While NAC recognizes that concerns have been made in the community about the operations of the Advocacy Commission, it is undeniable the functions that the commission provides are essential to protect the legal and social rights of the vulnerable individuals. The act was developed with support from consumers' groups that suffer from a lack of protection of individual rights from institutional and legislative intrusions. Rather than addressing the roots of the concerns by enhancing the resources of the commission so that timely and adequate response can be provided by the advocates, the Ontario government has chosen to repeal the act and eliminate the commission. While the government is in the process of finding alternatives to the Advocacy Act, it is irresponsible for the government to take away the protection of the vulnerable from intrusive measures that infringe upon their rights to liberty and security. NAC therefore recommends that the Advocacy Act should not be repealed.
In regard to the finding of incapacity and rights advice, we feel that the Health Care Consent Act, sections 18, 38 and 55, denies the right of individuals to be informed when they have been found to be incapable of making decisions about their own treatment by the health practitioners. Such denial also applies to others who may be found incapable of making admissions or personal assistance plan decisions. Bill 19 also takes away their right to rights advisers to provide them with advice regarding their treatment or admission. Consequently, they also lose the right to be advised of possible appeals.
It is unthinkable that in a democratic country some of us can be moved into institutions without even being informed. It is highly questionable whether any public interest in protecting individuals from inflicting harm upon themselves can be served when such fundamental human rights are violated. Powerlessness over one's own personal health and own environment only reduces possible chances of recovery for those in real need. For others, where inappropriate treatment or admissions have been applied, the mental and physical aggravation will greatly affect their long-term wellbeing. Even if concern for human rights is not high on this government's agenda, the government should consider the economic implications associated with this provision when the costly option of institutionalization can be freely chosen by health practitioners against the wishes of individuals. NAC therefore recommends that health care practitioners and evaluators should be required to inform the persons found to be incapable. We also recommend that rights advice should be restored in respect to treatment, admission and personal assistance plans.
In regard to emergency treatment, section 23 of the Health Care Consent Act permits emergency treatment without consent of an incapable person when communications cannot be made to seek consent or refusal from the person due to language barriers or other disabilities. The lack of access to appropriate linguistic and cultural services, including assessment, treatment and other forms of support, has already caused great harm to the cultural and linguistic minority communities.
Within our Eurocentric primary and mental health system, people of colour, particularly women, are often subjected to intrusive medical and psychiatric treatment that contradicts their religious, cultural, spiritual practices and beliefs. It is appalling for the government to condone such practices. NAC therefore recommends that no emergency treatment should be provided unless the health practitioner is certain that the individual is not objecting to the treatment and is not aware of a prior competent wish to not have the treatment and is not aware of an authorized substitute who objects to the treatment.
NAC is fully cognizant of the fact that such recommendations do not adequately protect individuals' rights. Anti-racism and anti-discrimination policies in the health care setting should also be in place to ensure compliance of policies and operational procedures, taking into consideration the diversity and needs.
Employment equity in the health care system to ensure diversity of representation among the practitioners is another part of the total strategies. Training of the practitioners to be culturally competent is also needed. Given that the Ontario government has repealed the employment equity legislation and eliminated anti-racism strategies, the protection of individuals' rights against inappropriate treatment becomes an even more challenging task.
In regard to the power of service providers, in the amending act, subsection 14(3) and subsection 35(3) concerning substitute decision-making, the prohibition against the appointment of service providers, including health care or residential, social training or support service providers to be the guardian of person or property, is in effect lifted.
The new sections in the act allow the court to appoint the office of the public guardian and trustee only as a last resort when there is no other suitable available guardian willing to be appointed. In real life many service providers, particularly the unscrupulous ones whose primary concern is monetary gain, are more than willing to be appointed and available for isolated individuals who do not have any support or option.
The thorough study conducted by Professor Ernie Lightman in the early 1990s into the operations of unlicensed homes exposed blatant exploitation, abuse, neglect and illegal actions by some group home operators. Similar situations are found in other long-term-care facilities. Community agencies that serve seniors, especially women, have confronted situations where group home operators illegally confine seniors and deny them basic personal care purely for financial gain.
Appointing the service providers as guardians puts them in clear conflict of interest and exposes the individuals to further abuse and control. NAC therefore recommends that service providers receiving compensation for providing services to incapable persons should continue to be prohibited from becoming either guardians of property or of person.
I will provide written copies of our submission to this committee shortly.
1610
Mr Ramsay: Thank you very much for your submission. You have brought forward many points that we in the Liberal caucus are also very concerned about. We think it's very important that a patient be informed when a decision is made -- I think that's absolutely paramount -- and also that rights advice is given. I would like to ask you, because we're not sure how and what mechanism should be employed to give rights advice, what sort of process you would like to see in place that would provide rights advice once a decision of incapacity is made.
Ms Sharma: The definition in the MHA of a rights adviser is a person or a member of a category of persons other than a health practitioner or a person who is employed by a health practitioner or health facility designated by the minister to perform the functions of a rights adviser under the act in health care facilities, and that is what we would also like to see. What we are very concerned about is the clear conflict of interest between the appointment of rights advisers who are also receiving financial compensation in regard to the provision of services. We see that as a clear conflict.
Mr Ramsay: The other area you talked about is actually a concern, and I'd like the ministry to note this. Coming from a rural area, if somebody is transferred to another facility, that could mean possibly out of their community. Quite frankly, I'm not so sure I'm happy with just that ability to transfer somebody to another community without another decision being taken and consultation being taken. Certainly I would want a safeguard put in place that would prevent somebody from being taken from their community without the proper consultation taking place. I know there are many people who live in rural communities across the province where that could really happen. So I thank you for bringing that forward also.
You mentioned another important area. However we replace what is being repealed through Bill 19 in regard to advocacy, you're very right in saying that there's got to be training. It's going to have to be brought forward, both rights training and also cultural training, to the people we will entrust in future to be advocates. Whether it's a volunteer network, like the government is saying, or it's going to be some sort of downscaled paid advocacy group, on a regional basis or across the province, there certainly has to be a concerted effort that there be quality control, that there be training and that there be accountability.
I appreciate that you bring those points forward and welcome any other comments you might like to make on that.
Ms Sharma: Just in response to two issues, we at NAC are obviously very much concerned with the erosion of health services across the provinces, and I share your concern that that is of particular importance to people who may have to move outside of their communities to receive proper health care. That is something we'd also like to see the provincial government deal with. On a federal level, with the imposition of the CHST on April 1, we can only see the situation worsen. We would like to see the government very strongly oppose the implementation of the CHST.
Second, in terms of the notion of volunteer rights advisers, advocacy groups have been asking for some time that volunteers be able to serve in a capacity as rights advisers, but we would not like that to come at the expense of proper training, at the expense of proper monitoring of these rights advisers. We would like to see the potential for conflict of interest be eliminated, particularly in the case of women, when we see that either providers in the home or providers in health care institutions oftentimes are also the abusers of women. So we would like to see many, many different potentials for conflicts of interest to be eliminated in that as well.
Mr Marchese: Just a few quick questions, and we welcome you here today. On the issue of emergencies, there's some language in the bill that speaks to making efforts to try to deal with the language situation or language problem or communication problem in general. There are difficulties often in emergencies in terms of how to deal with that but it does say, after you've made some effort, you should move on to deal with the emergency problem.
One of the deputants a while ago made the suggestion that we try to make an effort to get an interpreter, which could be a linguistic interpreter if it's an issue of language or a sign interpreter for dealing with sign, or however else people can communicate. Do you think that is a useful suggestion?
Ms Sharma: I think that's absolutely fundamental. If we are talking about the fact that people must, in a democratic society, have the right to appeal or question and be properly determined to be truly incapable of making decisions regarding themselves, then all of the necessary procedures to ensure that that is happening have to be included. Whether that's language provision, sign-language provision etc, that has to be taken into account. It seems to me that this government is moving absolutely in the opposite direction, that individual rights are actually being eroded through Bill 19.
Mr Marchese: I didn't hear you, I may have missed it, but I'm not sure you spoke about the Advocacy Commission, which they are obviously eliminating as well as the Advocacy Act and rights advisers. The Advocacy Commission of course was going to deal with many things had they had the opportunity to do it. They would deal with education, training, community development, they would deal with systemic advocacy and, of course, rights advice.
I personally feel that that was a critical function of the particular board developed after many, many years of discussions with a lot of people in the field, and I see the state as having an important role to play in that regard. The government disagrees with that because they think the state should not be involved in this sort of thing. Have you formulated an opinion around what the elimination of the Advocacy Commission might mean to people you were speaking about?
Ms Sharma: I think with the elimination of the Advocacy Commission we're really talking about a fundamental erosion not only of individual rights but also of community values, which is another glaring inconsistency between the principles stated by the government and the actions that they're following through on. With things like the Advocacy Commission and with some of the other bodies that have already been eliminated, we see the government moving very strongly in that direction.
We would only encourage the government that if it believes that only some people in Ontario deserve basic rights and access to certain services, then it should make that clear and apparent instead of hiding behind the guise of taking away individual rights on behalf of community values and eroding community values by taking away individual rights at the same time.
Mrs Boyd: That really is the point, isn't it? It's the cumulative effect of all these things on women, who, although they're the majority of the population, have never enjoyed the rights that a majority in most communities usually enjoy.
When you look at what has really happened over the last few months in terms of the erosion of people's economic ability to sustain themselves and their families, in terms of the kinds of added burdens that you see with the payment for the drug benefit plan, the real difficulty around many of the community services that have been defunded or had their funding so severely reduced, the problems in terms of getting legal assistance in the courts and current threats to the legal aid clinics and so on, when you go through the whole list, the cumulative effect on women and children and anyone else who is marginalized and vulnerable, it's a really enormous effect, isn't it?
Ms Sharma: Yes, and we are concerned particularly with the erosion of legal aid assistance in regard to all of the various aspects around ensuring that when someone is classified as incapable of making decisions regarding their own health and their own property that that truly be a fair decision, and with erosion, I think you're absolutely right, it's the culmination of the things. It's so hard to deal with Bill 19 without having to deal with all the things that have come prior to that.
1620
Mrs Boyd: Because if people don't know their rights and they don't know their right of appeal and they don't know that there is the availability of counsel, they have no one to represent them, this really becomes a very serious issue, doesn't it?
Ms Sharma: Especially with the proposal to start charging people who might want to appeal a decision made by a health care practitioner in classifying them incapable. Asking those people to pay for access to materials they would need to launch an effective appeal seems also unconscionable in a democratic society.
When you're considering asking health care providers to also become the rights advisers, there seems to be a clear conflict of interest. If the rights advisers are also the same people who are holding the actual materials you would need to launch an appeal against that designation, it's a very vicious circle. Unfortunately, the person is in a very vulnerable position, either through mental or physical illness and that's the last time that you need all of these added pressures in dealing with this.
Mr Ron Johnson: I want to thank you for your presentation to the committee. You were pretty adamant that you're opposed to the repeal of the Advocacy Act, but I want to say that there have been a lot of groups that have appeared before us that understand why we're repealing the Advocacy Act, including a number of groups, I might add, that do provide advocacy. They understand that bureaucracies don't necessarily do what we all want them to do and that the best advocacy service isn't necessarily provided by a big $18-million bureaucracy, and we feel there are better ways to do that.
I would also suggest that the current act is very adversarial and very confrontational. Even Ms Caplan, I believe it was November 27, in the Legislature said that the current act was very confrontational and adversarial and something had to be done. I would guess that's probably one of the reasons why they too were going to repeal the act.
What we're looking to do now is come up with a plan that is going to incorporate better use of families, friends and existing organizations. Even the O'Sullivan report clearly stated that the government's role should be that of support and education and we're looking at ways we can do that as a government.
We've been criticized somewhat as well for not already having a plan in place, but I can tell you that had we come up here with a plan, we would have been criticized for not consulting and going through a committee process first. So what we're doing now is going through that process to find out ways from people like yourself that we can incorporate a long-term plan for advocacy, systemic and otherwise, to help the vulnerable in society.
I would suggest that you are in fact an advocate. That's what you do by virtue of being here today; you're proving yourself to be a worthy advocate for the people you represent. How do you see yourself and your organization becoming part of the plan we want to develop as a government?
Ms Sharma: I understand the criticisms of the Advocacy Commission and some of them were well founded, and I understand that there are other models for advocacy that rely more on volunteers and family members and that don't require the centralization of all of these functions. However, the government itself must play a role in advocacy by supporting the work of existing and future individuals and organizations which advocate for people with disabilities.
There must be publicly funded advocacy for vulnerable adults in Ontario. There must also be a licensing body, as was mentioned earlier, for advocates. Even when you were talking about advocates who are volunteers or family members, we have to ensure that those advocates have the proper training, which includes also being able to be culturally competent, which includes linguistic skills in the body of volunteers you're calling upon.
For the public to have confidence in those who call themselves advocates, the government must support a body which can establish a training curriculum for advocates which sets standards for their conduct and provides official recognition to advocates who have completed the training and agree to abide by the standards. In addition, advocates cannot help people in the most desperate situations unless a statute grants them a right of access, for example, to people with disabilities in unregulated boarding-homes. In terms of those, those are the thoughts we have developed so far on it.
The Chair: I thank you very much, you and your organization, for making the presentation today.
Mr Parker, I just need some clarification. I'm not certain whether you placed your motion down after this particular deputation or to the end of the day.
Mr Parker: Regardless of what I said, Mr Chairman, I'm quite happy to put consideration of my motion over until all the deputations have spoken. I understand we have two more to appear before us.
The Chair: Fine. Thank you very much, Mr Parker.
Mr Parker: I understand Mrs Johns has some amendments.
Mrs Johns: Mr Chair, I'd like to table the government's amendments to both the SDA and the Health Care Consent Act. We also have in this package a letter that has gone out to all of the colleges. Plus, we have comparisons between the old acts and the new acts because that was requested from both the SDA's standpoint and the CTA.
From our standpoint in the health care, I just wanted to suggest that there were 81 motions that we're moving. Forty-three of those motions involve a single word where we have either changed the word "resident" to "recipient" or "service" to "plan" as a result of people who have asked for that during their presentations, so I hope not to hear, "There are 81 amendments and look how big they are." We believe we're strengthening the bill and it proves that the government has listened to what's happened over the last three weeks.
Mr Marchese: Hear, hear.
The Chair: I'm certain you won't hear that, Mrs Johns.
Mrs Johns: I'll guarantee it.
OLDER WOMEN'S NETWORK
The Chair: The Older Women's Network, Ms Turner, welcome. Thank you for attending today.
Ms Evelyn Turner: The Older Women's Network thanks you for this opportunity to speak. Our membership for the most part is composed of laypersons not learned in the law. However, as seniors and some of us are older seniors in our 70s and 80s, we have witnessed and experienced the evolution of change in the fundamental values under which our country functioned from early in this century to its approaching close. Over time, we have contributed to the achievement of a sharing and caring society of which we are all very proud. We speak from our emotions.
After much debate, soul-searching and discussion, participated in by many sectors of our society, legislation was developed which would put our worries to rest regarding loss of control over decisions that might be made on our behalf and which might be contrary to our wishes.
The repeal of the Advocacy Act, the pending amendment of the Substitute Decisions Act and the repeal and replacement of the Consent to Treatment Act are of enormous concern to senior citizens. The purpose of this presentation is to make suggestions for some changes with the hope this committee will view them with favour.
The Advocacy Act, 1992: Our expectations were raised to dizzying heights. At last we were not just being listened to and patted on the head. Our innermost fears were to be validated and allayed with the creation of a new tool, the Advocacy Act.
As we age, we become more and more vulnerable to the onset of catastrophic episodes, for example, stroke, diabetic coma, Alzheimer's disease. No doubt all the members of this committee are very familiar with these debilitating conditions, but for a moment just imagine yourself the victim of a stroke and unable to speak or move. Your mental faculties are intact, but your body is unable to make its normal responses and to communicate your wishes. Helplessness is universally feared by all of us.
As you know, the Advocacy Act would provide for rights advice and advocacy services to be made available to the vulnerable, and created the Advocacy Commission to train people to assist those in need of such services. We urge that alternative sources be used and/or developed to fill the gaps left by the repeal of the Advocacy Act.
The Advocacy Commission has recommended that the government fund "a non-profit charitable corporation, the objects of which should be community development, education, training and systemic advocacy." It proposes that such a corporation be governed by "a board whose members are people with disabilities." To this we would add "and seniors and other affected members of the community."
1630
To augment government funding, the corporation could be mandated to raise funds privately, sell services and increase its income in other ways. This is a practical approach to dealing with present fiscal realities.
We do hope that you have had the opportunity to read the brochure in which the Advocacy Commission has illustrated the efficacy of providing a cost-effective way to deliver a much-needed program to communities throughout Ontario.
We also suggest using the resources of existing community legal clinic systems, such as the Advocacy Centre for the Elderly, which already provides similar services. With elder abuse on the rise in these difficult times, adequate funding would ensure the continued availability of advice and advocacy services as the need increases.
The Substitute Decisions Act, 1992: In the amended Substitute Decisions Act, words and phrases that brought us comfort, such as "advocate," "rights advice," "explain the significance and effect of" have been expunged. We feel threatened by the withdrawal of advocate support and rights advice and the possible lack of requirement to be told what is planned for our bodies. Surely the expectation to be told the nature and possible consequences of a treatment or change of venue is not unreasonable. Wouldn't you like to know if this were happening to you?
Added to our feelings of insecurity is the possibility of not knowing how our property will be administered in the event that we are deemed incapable.
An example of this is the repeal of subsection 16(2) under section 10 of the amendment act. Relative to the public guardian and trustee as statutory guardian of property, subsection 16(2) required that before assessment took place the assessor would first have to explain to the person the purpose of the assessment, the significance and effect of a certificate of incapacity and the person's right to refuse to be assessed.
Other sections throughout the existing act are also repealed in the amendment act which allow actions to be taken without such conditions being fulfilled. See subsection 30(6) of the amendment act repealing sections 10 and 11 of the existing act, which relate to authority of validation of power of attorney for personal care. In this case, the requirement of the attorney to explain to the grantor what was happening is eliminated.
We would very much like to see these requirements included under the circumstances described, in each case making it mandatory that the grantor be given such information.
We would respectfully suggest that the amendments to the Substitute Decisions Act and the new Health Care Consent Act must contain regulations that clearly define steps that must be taken to ensure that the instructions of the grantor of powers of attorney for property and for personal care take priority when decisions are being made.
When reading the Substitute Decisions Act as amended and the Health Care Consent Act, one develops a feeling of foreboding. There is an apprehension that the rug is being pulled out from under one's feet. In the matter of arranging for attorneys for property and for personal care who would carry out our wishes should we be unable to act on our own behalf, safeguards are being removed which would have prevented exploitation of our vulnerableness. Thus, when our nuisance value increases, there will be a ready solution to the problem.
The Advocacy Act defined that:
"`vulnerable person' means a person who, because of a moderate to severe mental or physical disability, illness or infirmity, whether temporary or permanent and whether actual or perceived,
"(a) is unable to express or act on his or her wishes or to ascertain or exercise his or her rights, or
"(b) has difficulty in expressing or acting on his or her wishes or in ascertaining or exercising his or her rights."
The words "vulnerable person" do not seem to appear in either the Substitute Decisions Act, 1992, or as it is being amended. As a result, determination of capability relates only to mental capacity or incapacity. Other conditions, such as being deaf, being paralysed or being unable to understand a language, might render a person incapable of communicating decisions. This should be recognized in this legislation.
Subsection 66(12) of the existing act forbids the guardian of personal care to use or give consent to the use of electric shock as aversive conditioning. Subsection 43(5) of the amendment act would permit such use if consent is given in accordance with the Health Care Consent Act, 1995. The use of electric shock treatment for such a purpose is absolutely rejected by us.
Section 50 of the existing act is repealed under subsection 32(1) of the amendment act. Subsections 50(3) and (4) deal with the use of force and permit assessment of the grantor and moving the grantor "to any place for care or treatment...and to detain and restrain the grantor in that place during the care or treatment." The provisions of the substitute section 50 of the amendment act are rather confusing and appear to place the grantor in a no-win situation. We wonder if this is the intent.
Subsection 57(1) of the existing act specifies that a person not be appointed guardian who provides health care, residential, social, training or support services for compensation. Then it is nullified by adding subsection 57(2.1), indicating that if no one else can be found, then the person described in 51(1) may be appointed the guardian of the person. The same situation exists relating to a guardian of property under subsections 24(1) and (2) and in the existing act as amended by the addition of subsection 24(2.1). This would constitute a conflict of interest.
Finally, subsection 6(3) of the amendment act repeals paragraph 3 of subsection 10(2), which disallows a child of the grantor to be a witness to the execution of a continuing power of attorney for property, and the same applies for a continuing power of attorney for personal care in the existing act, subsection 48(2). This could open the way to abuse, should the child see an opportunity to exert influence using the advantage of witnessing a power of attorney.
Health Care Consent Act, 1995: It would seem natural to assume that if a person is judged to be incapable with respect to treatment, admission and a personal assistance plan -- Health Care Consent Act, 1995, sections 18, 38 and 55 -- he or she would be so advised in each case. A health practitioner or substitute decision-maker is expected to do so.
In these cases, a rights adviser would be appropriate to devote the time and energy necessary to make the person aware of the finding of incapacity and their right to appeal the assessment. A rights adviser would also make known to the person the facts of the assessment and that a substitute decision-maker had been authorized to make decisions on the person's behalf.
Those of us who have thoughtfully prepared living wills outlining in some detail the manner in which care should be given when we are unable to speak for ourselves are now worried that our wishes will be so easily overridden. Now is the time we seniors would really like to be told, "Never mind, everything's going to be all right."
The Acting Chair (Mr Ed Doyle): Thank you for your presentation. The Conservative caucus will begin questioning; you have approximately six minutes each.
Mr Leadston: We'll reserve the period.
The Acting Chair: You'll reserve the time and defer. Okay. We'll move on to the opposition, the Liberals.
Mr Ramsay: I'd like to thank you very much for making your presentation. Next week we are going to be coming back somewhere -- I'm not sure it's in this building -- to be looking at the government amendments, which have just been tabled, and there will be amendments coming forward from the opposition. We will be looking at your submission and looking for advice in developing some of those amendments. Thank you very much.
The Acting Chair: Anybody else from the Liberal side? No? Okay, then we'll move it on to Mr Marchese.
Mr Marchese: Thank you, Mrs Turner, for your presentation. In your first page you talked about after much debate and soul-searching and discussion, many of you participated in many sectors of society in the legislation that we brought forward in our term, as an NDP government. I'm assuming that you agreed with the fact that we created the Advocacy Act --
Ms Turner: It was an excellent act.
Mr Marchese: -- and the Advocacy Commission --
Ms Turner: Yes.
Mr Marchese: -- and rights advisers, and also that they would have the ability as well to be able to enter a place where they understood or heard that there might be some abuse against a vulnerable person and that was a good thing. You agreed with all those things?
Ms Turner: Certainly.
1640
Mr Marchese: One of the things Mr Johnson said -- and he's just stepped out for a few moments -- was that if we had brought in a proposal, now that we're repealing the Advocacy Act and the Advocacy Commission and rights advisers -- that if we had brought one we would have been criticized. Do you think that when they do come up with a plan, assuming they do, they should come back to this committee so that people like yourselves would have an opportunity to be able to comment on that particular plan, or do you think they should be able to do that without the feedback from people like yourself?
Ms Turner: We'd like to see the feedback. Actually, out in the community there are plenty of people with expertise, because we've been working for years on this and we've studied it in depth and we have a deep understanding of it. We'd be pleased to have some input in future legislation.
Mr Marchese: So -- Mr Johnson is here, just to repeat it -- you agree that if they do come up with a plan, they should bring it back to this kind of committee forum for not only the feedback of the opposition, but also feedback of people like yourself.
Ms Turner: Yes. In the first place, we'd very much like to know what would be contained in such new legislation, and we would welcome the opportunity to have some input.
Mr Marchese: We thank you very much for coming.
Mrs Boyd: I want to thank you very much too. You're quite right, your group has developed a great deal of expertise over the last few years and I know it's important for us to listen to that expertise, because you have access to the candid opinions of people you represent in a way that many of us might not, so it really is important for us to listen to you.
I think that one of the issues you present so persuasively is the whole notion of how very vulnerable people are and how many more people are going to become vulnerable just in the natural demographic course of things over the next few years, and that the task of a community to try and maintain the ability of those people, to maintain their independence and maintain their dignity is going to become a larger and larger task, so rather than cutting services, we need to be looking at shifting some of our resources into that area. Unfortunately, the bill, by doing away with the Advocacy Commission, is taking exactly the opposite tack. Would you agree that's a real problem for you?
Ms Turner: Yes, and not only that, there's a real problem in expecting help to come from your own community. In my 70s, I have been a primary caregiver to my brother's widow, who's the same age as I am. You become burned out looking after two houses and finally having to see this person placed in a facility. It's emotionally draining too, because we care. Our children who are reaching middle age, they have their families and some of them, their children have children, so we really can't look to families like we may have done at the turn of the century. It just doesn't exist, the help from families, any more.
Mrs Boyd: And when it is there, when families are doing their best, there has to be a recognition that at some point they may not be able to continue to do that, and then both the person who needs the care and the person who has been providing the care need some assurance that the wishes of the person who needs care are going to be continued and that there's some teeth to that, because we all know of the tragedies where that has not been the case. It certainly gives rise to a lot of fear on the part of a lot of older people that they will not have control over their destiny, if in fact they don't have that kind of availability of advocacy people who can actually access them and find out the information and then take action on their part.
Ms Turner: That's quite true, because what I've been expressing is the feeling of my peers. They live primarily alone in apartments and they have no one to turn to when they're in distress or even if they're worried, and it's very reassuring if you know there is someplace you can go for advice, not so much that we might expect active advocacy or intervention, but we want to know what's available and what measures we can take to help ourselves.
Mrs Boyd: Of course, you wouldn't name someone as your substitute decision-maker if you didn't trust them, but it sure is a lot nicer to know that even if you trust them, there's someone who is able to intervene on your behalf if for one reason or another they either are not able or are not willing to carry out their responsibilities as you have instructed them.
Mr Ron Johnson: I want to thank you very much for your presentation. I just have a quick question. Did you take part in the ministry's stakeholder consultations?
Ms Turner: Yes.
Mr Ron Johnson: You did. It's funny, because I've listened to Ms Caplan and Mr Marchese talk about how we didn't consult and yet here we have somebody who was involved in the consultation process and there have been a number of other groups --
Mrs Caplan: Was she consulted before the legislation or after it?
Mr Ron Johnson: They get all riled up when you start telling the truth. That's the bottom line. You see, what I'm saying is that we have taken part in a lot of consultations and we're going through three weeks of consultation now, and what we really want to do is develop a non-intrusive, non-legislative approach to advocacy. That's really the role of the government. The previous legislation, as even Ms Caplan has said many times, was confrontational, it was adversarial. What we want to do is develop legislation that incorporates family, it incorporates friends, existing organizations, but we want it to be a non-legislative approach.
I'm glad to see that you took part in the stakeholder consultations, as many others did as well. We're going to take the information from that, we're going to take the information that we're getting from this committee and we're going to develop a real plan for advocacy, not this big bureaucratic boondoggle that was created by the last government. We're going to create a real plan that helps real people in need, and that's really where we're coming from.
I guess I want from you some sort of ideas perhaps, because we're still looking for some ideas, on how we can best use people like yourself within that advocacy plan, and groups like yourselves, through training, through education, through coordination, that sort of thing.
Ms Turner: The meeting I attended, it was really after the fact. We didn't really know how we could add constructively to the information that was already available, because many hours and weeks and years had been spent in discussing this and working out solutions. I think no act is perfect, and the Advocacy Act wasn't perfect, but it wasn't as confrontational as it was made to appear to be. We seniors really fully supported it, although we had suggestions too that would improve it in some respects.
Mr Ron Johnson: I think that as much as you're saying it wasn't really confrontational -- you may be right. I didn't, quite frankly, have to deal with the previous act. I was fortunate that I didn't. I know, though, that a lot of people have come and sat right where you're sitting and said: "Yes, it was confrontational. It was adversarial. It pitted doctors against family, it did all of those things." I guess what we're trying to do is just to develop a plan that's user-friendly, that involves family, existing organizations.
I think you make a valid point when you say that you want to come up with some ideas that can contribute to the model that we come up with. I look forward to hearing all of the suggestions that you have because we really want to work together and come up with a good plan, because by no means, despite what the opposition wants to say, have we given up on advocacy. It's very important to us.
Ms Turner: We're very glad to know that.
Mr Ron Johnson: It's very important to us.
The Acting Chair: I understand, Mrs Caplan, that you still have about three minutes.
Mrs Caplan: Were you consulted or did you have an opportunity to meet with any of the ministers prior to the tabling of Bill 19 to discuss the changes that are being made to the health care consent legislation and to the substitute decision legislation?
Ms Turner: No, our organization didn't, to my understanding, receive any information.
1650
Mrs Caplan: Were you presented with any information from the government that would allow you to make suggestions to them before this legislation was done?
Ms Turner: I don't think there was opportunity for input, not before.
Mrs Caplan: The reason I'm asking that question is that I've been told by the ministers that they did consult, and we're hearing from the Vice-Chair of the committee that they did consult, and yet when I've asked groups and organizations if they were part of that consultation, they've said no. What we've heard from members is that was during the election when they knocked on the doors. So I guess the next question is, when your Conservative candidate knocked on your door, did you have a discussion about this issue with him or her?
Ms Turner: I probably wasn't home; I attend a lot of meetings.
Mrs Caplan: So you never had that discussion on the doorstep during the election either?
Ms Turner: No.
Mrs Caplan: The purpose of my questioning here really is to determine whether or not you were part of any meaningful consultation prior to this legislation coming in. It is also very normal, when a government says they're going to do something, that they consult, bring in their proposals and make the changes that are going to be made so people know what they're going to do. What Bill 19 does is repeal the Advocacy Act, and they're saying, "Well, we're committed to it, but we're going to talk about it."
Now the truth is, I believe that the existing Advocacy Commission as it was constituted by the former government was too expensive. I felt that it was not sustainable. In fact, there have been some very interesting proposals that have come forward for alternative models that I think would meet the O'Sullivan objective of a shared advocacy model that is affordable in Ontario.
I'm disappointed that we're dealing with the repeal of this legislation without having any idea about what the government intends. All we know is that Minister Mushinski has said there will be no new legislation. That's a concern, because how you can develop a model of coordination without having standards established by law, I don't understand, but I wait to see.
So I'm pleased to hear that you are participating in the consultations on what they're going to bring forward. I've listened very carefully when Mr Johnson says they don't know what they're doing -- and I agree with him, they don't know what they're doing -- and it'll interesting to see what they bring forward. Now that we've heard from them how committed they are to advocacy, we're going to be waiting to see what they bring forward.
The Acting Chair: Thank you very much, Mrs Turner, for coming today.
PARKDALE COMMUNITY LEGAL SERVICES
The Acting Chair: Next is Parkdale Community Legal Services, Mrs Lilith Finkler. You have a half-hour.
Ms Lilith Finkler: I have to say before I begin that listening to all of you talk is much better than a sitcom; it's like real life action. I love it.
Mrs Caplan: If only it weren't true.
Ms Finkler: I need to say as another aside, since I know that all of you around this table are sensitive to the needs of people with disabilities that the wheelchair-accessible stall in the women's bathroom does not have a door. I don't know which of you around this table is responsible, but --
Mr Marchese: It's the government.
Interjection: Didn't the previous government take care of that?
Interjections.
Ms Finkler: Having made my preliminary comments, I would like to thank members of the standing committee for the opportunity to present this brief today. I am Lilith Finkler, a community legal worker at Parkdale Community Legal Services. I have been advocating on behalf of and in conjunction with persons with psychiatric histories in Parkdale for many years. A large proportion of my clients are current or previous patients at Queen Street Mental Health Centre.
In addition, almost 20 years ago, at the age of 17, I lived in a psychiatric treatment centre run by a local children's aid society. I witnessed a very traumatic rape. As a result, I became actively suicidal and was involuntarily detained in a psychiatric facility. Upon admission, four male orderlies ripped off my clothes and administered an intramuscular injection. This was for me a replay of the horrendous experience I had just witnessed a few days before; I freaked.
I was told nothing. No one explained the large needle, nor the medication contained within it. No one asked my permission to insert the needle into my buttocks. Worst of all, no one asked why I was so upset. I was so alone in my pain.
I did not understand why I was in the hospital until much later. Apparently, during the holiday season the staff were on vacation. Residents were all sent home. Children's aid did not wish to incur the additional expense of staffing the house for one person. The hospital administration agreed to keep me until the treatment centre reopened about a week later.
Today, therefore, I stand before you as both a survivor of the psychiatric system and as a legal advocate. Both my professional and personal experiences form my understanding of the laws under discussion.
I'd like to add, although this is not in the body of my brief, that I am not alone. There are many women who are survivors of the psychiatric system who are also survivors of sexual and physical abuse. In fact, a study done a number of years ago by Temi Firsten, who was a psychiatric social worker at Queen Street, indicated that 83.1% of the women in provincial psychiatric facilities in Ontario were either survivors of severe physical abuse as adults or severe sexual abuse as children. Imagine the psychological and physical impacts of forced treatment on those of us who had already endured horrendous unwanted touch as children. I think it's important to emphasize that while the family can certainly be a source of refuge, it can also be a source of abuse, the very thing we need to escape when we enter a psychiatric institution.
Like many presenters, I come here with a visual aid, something to illustrate the issues pertaining to my submission. The last page of this brief is an image of the dilemmas all legislators face when constructing laws that govern our society. If you look at the back, it's a very simple picture. I'm by no means an artist, and I'm sure all of you will be glad to know that I don't aspire to be one, but it is an attempt to illustrate for those of you who are visual.
We all view the world through particularly coloured lenses. In this case, we view the legislation through a wish to support positive doctor-patient relationships. This desire is balanced by the need to enshrine the right to individual control; in other words, the security of the person. So on one side of our mouths are the statues of the Health Care Consent Act, Regulated Health Professions Act and the Mental Health Act; on the other side are sections 7 and 15 of the charter.
The limbs of this body provide procedural protections to those deemed incapable to consent to treatment to manage their finances. On the left are the ranking provisions of the Health Care Consent Act to ensure that a substitute decision-maker chosen by the incapable person will act in their stead. On the right is the insistence that previously expressed wishes when competent will be respected should the person become incompetent to make their own treatment decisions.
At the foundation of this legislation are the two legs it stands on; ie procedural protections to prevent potential conflict-of-interest situations. The Substitute Decisions Act currently prevents caregivers from becoming statutory guardians of property. This provision should not be removed. The Family Benefits Act, General Welfare Act, Old Age Security Act and the Canada Pension Plan Act all allow third-party assignment and control of funds without notification, assessment of capacity and/or right of appeal. The public guardian and trustee also assigns trusteeship to various service providers. Of course, what I'm going to speak about here are some of the difficulties with the implementation of the legislation already in place.
1700
As I work in Parkdale, a large number of the people I deal with are individuals who have been labelled with a psychiatric diagnosis of some sort and who live in boarding homes. Today boarding home operators often control tenants' funds. As a result of their power, some operators commit gross violations of human rights. Some operators force their tenants to sign over the whole FBA cheque rather than simply the portion for room and board. Some operators take the money they receive from the government and then force tenants to obtain food from a local food bank. Shortly after welfare recipients were cut back 21%, one of my clients was told that he could no longer bathe in his own home. In the cold winter winds, he was sent to the hospital for a shower. One pharmacist who operates a boarding home allegedly collects FBA drug cards and insists that house doctors prescribe medication and that all drugs be purchased at his store.
In short, the proposed Substitute Decisions Act amendments would legalize abuses already taking place. The right leg displays the independent provision of rights advice. Changing the definition of rights adviser and allowing the hospitals to designate their own rights advisers endangers the very premise on which the legal system now functions; that is, if certain human rights are removed, the subject of these actions is entitled to be told why and to be informed of the appeal process if they disagree. The elimination of this procedural right could well be subject to Charter litigation should it be passed into law.
In addition to the abovementioned general comments, I would like to address a number of the other provisions that, in my mind, present specific dangers. I'm simply going to indicate for the record the issue and, since you all have in front of you the actual legislative referral number, I'll leave that.
(1) Use of the cattle prod for aversive conditioning. There is no reason to reintroduce substitute consent for the use of a cattle prod. Persons with development disabilities who self-injure can be assisted with a variety of other therapeutic interventions. Gentle teaching, for example, emphasizes the potential for a dialogic relationship between the person who self-injures and the person setting out to help them. In my mind, cattle prods are for cattle.
(2) The phrases "least intrusive" and "least restrictive" are value-laden terms with no litigated definitions. These words can be used to justify all kinds of aversive techniques. Certainly, if people want to ask me afterwards, I can elaborate.
(3) Section 32 of the HCCA, which allows the treatment of an allegedly incapable person prior to a Consent and Capacity Board hearing, is a violation of due process and natural justice. Treatment should not begin until a Consent and Capacity Board determination of incapacity is made. There is a presumption of capacity as there is a presumption of innocence.
(4) Section 44 of the HCCA, which allows admission to a long-term-care facility for a specific number of days without consent, may be an attempt to distinguish a temporary stay in a facility from a more permanent placement. There should, however, be mention of a specific, maximum number of days. As the legislation stands, if a person authorized a stay of 3,650 days, the equivalent of 10 years, for example, they would be exempt from the procedural processes described earlier in the same section. I do not believe this was the original intent.
(5) The PGT Act allows the PGT to charge for services. Many PCLS clients, unfortunately, have no ability to pay, being primarily recipients of family benefits or Canada pension. These statutes should include a provision that fees will be waived if they constitute undue hardship for a client.
(6) HCCA subsection 71(2), which implements one-member panels of the Consent and Capacity Board, should state the nature of the issues such panels will be able to adjudicate. While this section may be an attempt to reduce costs while serving northern clients, it may also create a situation where those living in non-urban areas are routinely heard by one-member panels rather than three. This would entail a form of systemic discrimination against rural residents, who already suffer from a lack of appropriate treatment facilities and specialized medical personnel.
(7) The Consent and Capacity Board should always issue written reasons. All parties in a legal proceeding are entitled to reasons for a judicial decision. If, in certain situations, patients experience difficulty in comprehending legal concepts, an effort should be made to interpret them. This is precisely what should also be done for someone whose first language is not English.
I hope I've gone fast enough for everyone; this is getting my adrenaline going.
As I indicated at the beginning of this presentation, I come to this work with both my head and my heart. Both hope and fear reside within me. One experience of my second hospitalization remains with me so many years later. I was in hospital during the summer. From my window, I could see the freshly cut grass and flowers below. I longed to smell them through the thick glass windowpane. When I was discharged, I ran to the flowers to luxuriate in their summer scent. Other passersby ignored them, hurrying on their way to work. They did not have time to enjoy such a simple pleasure. I, on the other hand, no longer took these plants for granted.
In closing, I ask that you not forget us as you sit around the table, writing and rewriting the statutes. Do not forget that those of us left lingering behind institutional walls, despite our labels, despite our disabilities, long to be active, contributing members of society. And we want to smell the flowers too. Thank you.
Mr Ron Johnson: I wasn't able to hear all of it. I am going to read through it, though. I had to step out for a meeting. I do want to thank you for your presentation. I understand some of the hardships you've personally had to go through and I can say that those are some of the things we're really trying to address through the new plan for advocates that we're going to come up with. We certainly hope that you will continue to play a part of the consultation process as we go through this.
Ms Finkler: When you say that you've endured the hardships, that you understand, does that mean that you have also been in a psychiatric facility as an inpatient?
Mr Ron Johnson: I would suggest to you that -- you're right. I could try and understand; I never will. Nobody here will. But I can certainly try and that's really what we are attempting to do. We've had a number of people who have come forward who have been through similar circumstances, and you're absolutely right: I will never truly understand what you went through. I can only do my best to try to understand how you're feeling.
Ms Finkler: Thank you.
Mr Parker: Thank you for your very helpful comments. You're very poetic in your comments today. You invited us to ask for some further elaboration on your point number 2 on page 7. I'm happy for you to do that.
Ms Finkler: That's with regard to the aversives?
Mr Parker: "Least intrusive" and "least restrictive."
Ms Finkler: Right. I worked for about five, almost six years for an agency providing service to people with developmental disabilities. There was a man who was blind and developmentally disabled who self-injured; in other words, he would bite and would perhaps scratch the first layer of his skin. As a result of this self-injurious behaviour, I was instructed to tie him up, scream at him. I had to trip him first, then take Velcro belts, put them on his hands, tie his legs together and then put a helmet on his head and gag him. This was with the knowledge of Comsoc directly at the time and was indicated as the least restrictive alternative to institutionalization.
Now, with respect to what was done at the time, this was approximately eight years ago, I disputed that and in fact attempted to get an injunction to stop, since they had no consent for what they were doing. Since they realized that they had no consent for what they were doing, they stopped, but it took two and a half years.
Mr Michael Brown: Your presentation is powerful, to say the least. We have, over time, heard some other powerful presentations from people in your situation, and you're right, none of us will ever understand exactly. But what I really wanted to do here was to suggest to you that we're hopeful that the government does create a new advocacy system and the government tells us they will.
I myself am quite sceptical of their plans in that, to date, we have heard nothing about any time line on this. We've seen other actions by the government where they have repealed something and the action to replace it just does not seem to be happening. It is very troublesome to many of us who really are trying to understand these issues not to have some commitment to go forward. I would ask the government to, at some point, tell us what the time line is on this. Our view is that the time line should have been that they had developed their new model, put it in place and repealed the act. They seem to have got the order wrong here.
I wonder if, given the fact that we're seeing press reports about legal clinics and what might happen to those, how this would really put further at risk the very people that you are here telling us about.
1710
Ms Finkler: Well, you want to know something? I get really upset a lot. This is not official, okay? I suppose it is; I'm speaking to a bunch of government representatives. But what happens to me at the end of every day is that I go home and I try to rewind or dewind and I sit there and there have been a number of times where I've just had to cry, because what else can you do when you sense your own level of powerlessness? Right?
There's one situation where a number of women are being sexually assaulted in a boarding home and they're terrified to leave because the landlord gets the check, the precise thing that will happen once you remove the statutory provisions that allow a landlord to become a guardian. I'm sitting there and I'm going, "Just leave," but what these people need are human bonds, human connections that I, as one individual, cannot provide for them.
Individuals that I might have asked to be voluntary advocates in the past are upset because they're getting laid off from their jobs, so they're feeling the need to go look for work rather than provide a voluntary service that they might have been willing to provide in the past. So I end up making five, six, seven calls trying to reach out and I just end up getting depressed and sad, and I say, "Okay, this is what I can do in the world and I can't do anything else."
But it's a very kind of emotionally overwhelming thing to realize because I come as someone who has struggled for 20 years. With respect to the various party differences, I was fighting you guys when you were the Conservatives, I was fighting when the Liberals were in power, I was fighting when the NDP was in power, so I'm kind of a cynical person. I figure I'll come to talk to the Conservatives, I'll talk to the Liberals, I'll talk to the NDP and I'll probably talk when there's a new party in power. I suppose from that perspective, what I would ask of all of you is to just think about the people that you're dealing with irrespective of party affiliations, because ultimately it could be you.
That's the other thing. There are people who I was very surprised to see, who previously had a great deal of stature in society, who are now in long-term-care facilities and they're all alone and horrendous abuses are being perpetrated. There's one media figure who used to be quite prominent and is now on a gastric tube because they don't have staff to feed her by hand. I don't know, I could go on, so maybe someone else should talk.
Mr Ron Johnson: On a point of information --
The Chair: I'm sorry. I don't know what a point of information is.
Mr Ron Johnson: On a point of order then. How's that?
The Chair: If you want to do a point of order, you're entitled.
Mr Ron Johnson: I know that there was some concern about the time line. I was just going to give clarification on that if you were interested.
The Chair: That's a point of clarification. I've already ruled that out of order. I think we're going to go on. Are you done, Mr Brown?
Mr Brown: Yes, and Mr Johnson could give us that time line following this presenter.
Mrs Boyd: Thank you very much for coming for sharing with us. We can hear in your voice the kind of frustration and despair you're feeling about the ability of the community, even with the resources they have at this point, to try and deal with some of these difficulties. Knowing that we're faced with the very real possibility that even those resources that still remain in the communities are being eroded every day in terms of funding cuts must make that despair that much worse, and I really appreciate what you're saying.
One of the real issues here is that, as a larger and larger proportion of our population becomes vulnerable, with natural aging and with the fact that we can now save and give a longer life to a lot of people who would not have lived in the past because technologically we can do that, this all becomes more and more urgent at the same time because we're getting larger and larger numbers of people looking to organizations like yours for assistance. The deinstitutionalization, particularly in psychiatric and developmentally delayed facilities is adding to that burden. Yet your funding -- I know legal clinic funding has stayed the same for the last four years. There's now a threat to that funding, and it really adds to the sense of helplessness that people have, because even those community agencies with the best will in the world are finding it very difficult to meet the growing needs as they go along.
Ms Finkler: Yes. It's funny because I was talking with other service providers and we're saying how we don't want to talk to our friends any more when they have problems. We were laughing; I thought it was only me, and what we realized is we don't have time to listen to our friends' problems because we're so busy listening to our clients that it's on psychic overload. We can't listen any more. Then, of course, I wonder about my friends as my source of support, because they do the same kind of work that I do. So I'm actually really grateful I've got a few friends who are willing to listen to me again today. It's just a kind of relationship phenomenon where you just get overloaded.
Mrs Boyd: Even the faith communities are trying to say to the government, "We can't fill the holes that you're creating by the kinds of cuts that you're making," so all of these supports that are so hopefully talked about by people are disappearing one by one.
I wanted to talk to a little bit about the aversive stuff because I think one of the things that is hard for people to understand is why, first of all, the prohibition against it was in the original act and why we have such concerns about it. This is a particular form of aversive therapy, as we all know, because we've had lots of people -- in fact we've had lots of people who are not Canadians -- come and talk to us about how important it is to allow this kind of treatment.
But it's important for us to hear from people like you about the kinds of routine aversive behaviours other than shock that are used and have been used in the past and have now passed out of fashion. Those of us who listened to some of the cases that come in front of the College of Physicians and Surgeons where we hear physicians defending sexually abusive behaviour as, "Well, that was the treatment that was done before," and the kind of drug therapies, the insulin therapy that we heard about the other day, but some of the excessive use of electroshock therapy within psychiatric facilities -- these people have a real experience with the fact that physicians will come and tell government that their treatments are effective and the only one there, when in fact five, six, seven years down the line, we find out what a mistake we've made and that person's life is destroyed. You see lots of those cases in your work, I expect.
Ms Finkler: Every day. But what I realized is that implementing those aversives -- the reason I did it is because I wanted a job. Then you have to think, if you do something that you're morally and ethically opposed to just for your paycheque, what kind of person are you? So I ended up leaving rather than implement the aversives. I figured, well, okay, a job is for today but your life is forever and you have to look in the mirror every day, not just when you're working.
I guess the underlying issue, if one is to look at a common thread in all of these things, is that there are people in positions of power in this society, and doctors are given that power by virtue of their status, by virtue of legislation, and people with disabilities have often been the subject of those abuses. That doesn't mean that there aren't really wonderful doctors; there are, and in some cases I would attribute part of my healing to the positive effect that those doctors have had.
But we also have to recognize that there are doctors like Dr Wiens, for example, who went to the Ongwanada institution in Kingston and did numerous rectal examinations on people with developmental disabilities and there was no medical reason, merely the exploitation of these bodies for the educational purposes of the medical students. Why would that happen, other than the power inherent in the position of doctors in this society?
Mrs Boyd: When we look at the history of Huronia or any of the other facilities for the developmentally delayed, we see many instances of that. Alberta is not the only province where forced sterilizations occurred.
Ms Finkler: Exactly.
Mrs Boyd: They occurred here. They may not have occurred under law, but they certainly occurred with the knowledge and the sanction of the government of the day. Those are the kinds of things that have been a part of our history that the work that has happened over the last 15 years has worked to change.
One of the most tragic things about these hearings has been that virtually everybody who comes before us talks about these kinds of situations and talks about inquests as being the largest source of information about the abuse of people at the hands of the medical community. I think that is something that we need to keep in mind. It's too late for that individual when there's an inquest. It doesn't help them. And if we, as the Legislature, don't listen to the recommendations of those inquests, then we also are implicated in the kind of abuse that occurs. Do you agree?
Ms Finkler: Yes. So are you going to make the changes I'm asking for?
1720
The Chair: Sure.
Ms Finkler: Well, if I spent the time -- I was up till 2 in the morning writing this -- I would hope that there would be some way for me to know if these recommendations are going to be implemented.
Mrs Caplan: Who has carriage of the bill who could answer that question for her?
Mr Parker: I'll answer the question. Your comments, along with all the other comments that we have received over the past three weeks, will be considered by all of the members of this committee. Next week is the time when we go clause-by-clause and decide just where we make amendments.
Ms Finkler: Okay. Thank you.
The Chair: Ms Finkler, I thank you very much. My only comment is that if you can change the world for one person, that is a great achievement. It sounds like you've done your share.
Mr Ron Johnson: In response to Mr Brown's concern about the time line, just for some information, I want to let the committee know that the minister also has something before cabinet in terms of an advocacy plan within the next couple of months, after we've listened, of course, to the people through this hearing process and some of the others.
Mr Marchese: Would you be bringing that back to committee for us to discuss and to give people an opportunity to respond to those recommendations?
Mr Ron Johnson: What we're saying is that there's been a great deal of public consultation. This is part of the public consultation process that will happen before cabinet --
Mr Marchese: I appreciate that. Fine. The minister will come up with a proposal. We would love an opportunity to discuss that, but I'm sure the folks that have come in front of this committee would love to be able to respond to that, unless of course you've taken care of every one of their concerns. Then we don't need to do that. But I'm certain that may not be the case.
Mr Ron Johnson: We've said very clearly that it's going to be a non-legislated plan. We've said that from the beginning. In fact, even if you look at Mr Reville's recommendation, it wouldn't require legislation to implement. So I would suggest to you that the hearings that we're going through now and the stakeholder consultations that we went through before have given us a great deal of public input into what we hope will be a better and more effective advocacy plan for the province of Ontario.
Mr Marchese: We're looking forward to that plan.
The Chair: Thank you, gentlemen. No doubt we'll discuss that further in our clause-by-clause deliberations.
The next order of business is a motion on the floor by Mr Parker. Perhaps you would like to restate that motion.
Mr Parker: My motion was that when this committee reconvenes, it reconvene at 10 o'clock on Monday in room 151.
Mr Ramsay: Could I propose a friendly amendment to that motion, that, continuing with that, the time line is fine, outside of the jurisdiction of the Ontario Legislature?
Mr Parker: I think that matter has been dealt with.
Mr Marchese: The other motion dealt only with committees not being able to start unless there was one member of each opposition party here. The motion to meet in another location is a different matter.
The Chair: Perhaps Mr Ramsay could restate it for us. Mr Ramsay is moving as follows.
Mr Marchese: Except, Mr Chair, he's moved a motion, and we're dealing with that. Are you asking him to move another motion?
The Chair: No, I'm not asking Mr Ramsay to do anything.
Mr Ramsay: I proposed an amendment to the motion.
Mr Marchese: I see. Fine.
Mr Ramsay: I'm amending the motion that we just continue on. I believe the motion is that we adjourn till 10 o'clock on Monday morning, and I've just added to that, as hopefully a friendly amendment, to someplace outside the jurisdiction of the Ontario Legislature.
Mr Parker: I hardly see that as a friendly amendment. That runs right in the face of one of the elements of my motion.
Interjection.
The Chair: Excuse me. Mr Parker moved that we meet here at 10 o'clock in room 151. There is a motion to amend by Mr Ramsay, deleting room 151 and naming a place other than Queen's Park. Now the question is, Mr Parker, are you willing to accept that amendment?
Mr Parker: No, I am not.
The Chair: Okay. If we're not, is this a formal amendment that we shall vote on? Fine. We have a formal amendment by Mr Ramsay amending Mr Parker's motion to meet at 10 on Monday for clause-by-clause at a location other than Queen's Park. That's the motion, and we can now have debate. Mrs Caplan had her hand up first.
Mrs Caplan: I think the amendment is friendly. We certainly would like to see the committee hearings go forward. While there was some discussion earlier about this being premature, this is a plan which would be a contingency plan and available for the Chair to make that call so the committee could move forward and do its work with committee members having some comfort that they were not in any way creating any tensions and also that their public would have right of access to the hearings.
I'm not going to belabour the point. I hope the government will support it. Nothing we're proposing in any way should upset or concern the members. In fact, there is a number of locations very close to here, whether in a hotel room or at the University of Toronto, where rooms could be made available without any difficulty. This is not a precedent whatsoever for a committee; it's a very normal thing for committees to hold their meetings in locations other than the legislative precinct.
This anticipates a possible problem, it solves it in advance and it just shows the kind of spirit of working together, cooperation, that would allow the hearings to move forward in an orderly manner and without any disruption of any sort.
Mr Ron Johnson: I want to speak to the amendment and categorically say that I will not be supporting it. This is a public institution; it will be open Monday morning. Committee hearings have been scheduled for Monday morning in this building, and we have a responsibility to be here regardless of any strike.
I might add too -- and I'm going to repeat; obviously, my colleague across the way didn't consider what I had to say the first time -- that this is a premature motion. There is no strike as of right now effective Monday morning. We don't know that there will be. Quite frankly, I think this is a premature panic on your part.
What we're dealing with is a situation where, yes, maybe there will be a strike, but we don't know. But even if there is, you have a responsibility, as does every member of this Legislature, to show up here Monday morning ready for work. It's a public building. It's a building that you, as a member, have right of access to; it's a building that the public has right of access to. It's more of a security issue than anything else. If you have some recommendations to security about how you want them to deal with the right of access, that would be a more appropriate way of dealing with this problem. But whether there's a strike or not, I think the hearings must be in this building, where they were scheduled to be initially. It is a public building, and it is going to be open Monday morning.
The Chair: Mrs Boyd, I should point out that I'm taking speakers in the order they raise their hands, without regard to what caucus they're from.
Mrs Boyd: I raised mine simultaneously with Mrs Caplan, but it matters not.
The Chair: I'm sorry. If it matters not, Mr Leadston.
Mr Leadston: I'll concede my time in the spirit of cooperation and allow Mrs Boyd to go before me.
The Chair: Thank you. Mrs Boyd, I'm sorry I missed you the first time.
Mrs Boyd: Thank you. Mr Johnson's words are probably an indication of why we're looking at having to take some contingency plans in the first place -- very confrontational instead of cooperative. Basically, that is the attitude that has brought us to this point.
I really would respectfully repeat what I said before, that whatever the circumstances are, whatever efforts might be made in terms of security in terms of members of the Legislature, we have all been through situations where the only security the security could provide was shutting all the doors. We have seen in the past that members' privileges were violated by their not being able to attend.
We have also seen, in the same light, many occasions in the past few months when it would not have been possible for those who require public transportation to get to this building because of the problems of the honouring of picket lines by those who have to drive them. Wheel-Trans is unionized. That will happen. We know that. The population that is most concerned with this bill will therefore, we all know right now, not be able to have access in the way they require it.
I think it is very naïve for Mr Johnson to say it is foolish to make advance plans. Everybody makes advance plans for the safety of those who are involved in their operation when there is a prospect of this. It would be very foolish for us not to. I think Mr Ramsay's amendment is indeed friendly to everyone concerned with the business of this committee.
Mr Leadston: I believe that as members of this Legislative Assembly, each of us here has a duty and responsibility to be here. I am not and will not be intimidated by external forces. I have a responsibility to be at committee, whether it's the justice committee or ABCs or whatever other committee. I don't feel intimidated, and I'm not going to be intimidated, by external forces and elements that I have absolutely no control over.
Mr Marchese: The ideological zealotry is quite apparent as we listen to the members of the government. What we've said on this side is that we want to do clause-by-clause; we want to work at that and we're ready to come Monday morning. What a number of us has said is that in the event of a strike, we make tentative arrangements to go elsewhere. We don't know whether there will be one. We understand that. In the event there is, we're saying we all want to show up for work, and all you have to do is to be reasonable enough to accommodate our work in a different location so we can do that. It's not unreasonable. The zealotry is not necessary. The request that has been made by both opposition parties is something that I would have thought you would have considered, but quite clearly, it doesn't seem to be affecting the members.
Mr Chair, we're quite ready for the vote, I think.
The Chair: Is there no further comment?
Mr Marchese: I call the question, Mr Chair.
The Chair: First of all, is there any objection to the calling of the question at this time? If not, we are dealing with an amendment to the motion made by Mr Ramsay to meet on Monday at 10 o'clock at a place other than Queen's Park. All those in favour of the amendment?
Mrs Boyd: A recorded vote, please.
Ayes
Boyd, Caplan, Marchese, Ramsay.
NAYS
Doyle, Fox, Johnson (Brantford), Kells, Leadston, Parker.
The Chair: The motion is defeated. We now have Mr Parker's motion on the floor, unamended. Is there any debate in regard to Mr Parker's motion? All those in favour of Mr Parker's motion?
Mr Marchese: We're all in favour, Mr Chair.
The Chair: Carried.
Mrs Caplan: I have a motion, Mr Chairman. I move that in the event of a strike, the committee request the Chair to seek advice from Mr Speaker about the possibility of having this committee reconvene in a location outside the precinct.
Mr Marchese: Call the question.
The Chair: First of all, I'd have to ask if there --
Mr Marchese: It's a different motion.
The Chair: Yes, it's an acceptable motion; I'm not ruling against the motion. The motion is that in the event
a strike is called starting Monday or earlier, I would of necessity have to consult with the Speaker of the House to obtain his advice as to having the meeting at a location other than Queen's Park.
Mrs Caplan: That's it.
The Chair: Is there any discussion of the motion?
Mr Ron Johnson: Can I call a 5-minute caucus? Am I allowed to do that?
The Chair: That might save us a lot of time. There's no objection? You've got it.
The committee recessed from 1735 to 1740.
The Chair: The five minutes is up. We have a motion on the floor, and Mr Johnson is recognized.
Mr Ron Johnson: I'll be very brief. Our position is that the Speaker is ultimately charged with security of the facility anyway. If there is a security problem with respect to access for any of us, he will make that decision on his own. He doesn't need to be prompted by the Chair of this committee. We're ready to call the vote.
Interjection.
The Chair: The question has been called by Mr Marchese. Is there anyone who objects to the question being called? No? We are therefore voting on the motion. All those in favour?
Mrs Boyd: Recorded vote.
Ayes
Boyd, Caplan, Marchese, Ramsay.
Nays
Doyle, Fox, Johnson (Brantford), Kells, Leadston, Parker.
The Chair: The motion is defeated. Is there any more business before this committee before we adjourn till Monday at 10 in room 151? We stand adjourned.
The committee adjourned at 1741.