BOYD, MICHAEL BROWN, CAPLAN, MARCHESE, RAMSAY. NAYS
CONTENTS
Monday 26 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
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
DeFaria, Carl (Mississauga East / -Est PC) for Mr Ron Johnson (afternoon)
Johns, Helen (Huron PC) for Mr Hudak
Marchese, Rosario (Fort York ND) for Mr Hampton
Also taking part / Autres participants et participantes:
Ministry of Health
Perun, Halyna, legal counsel
Clerk / Greffière: Bryce, Donna
Staff / Personnel:
Beecroft, Doug, legislative counsel
Gottheil, Joanne, legislative counsel
The committee met at 1005 in room 151.
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.
The Chair (Mr Gerry Martiniuk): Good morning, members of the committee. This is the continuation of the justice committee's consideration of Bill 19. This week has been allocated for clause-by-clause consideration of that bill. David Tilson, parliamentary assistant to the Attorney General, has carriage of Bill 19 on behalf of the Attorney General and the Minister of Culture, and Helen Johns, PA to the Minister of Health, has carriage of the health portion, I understand.
The first matter for consideration is section 1 of Bill 19. I would ask the committee if there are any questions, comments or amendments in regard to section 1.
Mr Rosario Marchese (Fort York): I move that section 1 of the bill be amended by adding the following subsections:
"(2) Subsection (1) does not apply unless the government of Ontario has established a system of advocacy for senior citizens and persons with disabilities that includes the funding by the government of a non-profit charitable corporation that,
"(a) takes a cross-disability approach;
"(b) coordinates community development, education and training; and
"(c) has authority to undertake systemic advocacy.
"(3) The following material shall not be destroyed and may be used by the government of Ontario in the development and implementation of a new system of advocacy for senior citizens and persons with disabilities:
"1. Statistical information collected by the Advocacy Commission.
"2. The results of the community consultations undertaken by the Advocacy Commission.
"3. Training and education programs prepared by the Advocacy Commission.
"4. The resource database prepared by the Advocacy Commission.
"5. Lists prepared by the Advocacy Commission of advocacy groups that the commission worked with."
I'd like to speak to the motion, Mr Chair.
The Chair: Please do.
Mr David Tilson (Dufferin-Peel): Mr Chairman, on a point of order: Section 1, which this amendment is proposing to amend, states, "The Advocacy Act, 1992 is repealed." I don't believe this motion to amend is in order. I think when you're outright repealing legislation you simply can't come along and dicker with that particular section. If Mr Marchese felt strongly about these types of issues, he'd have to put forward a separate bill.
The Chair: Mr Marchese, did you wish to speak to the point of order?
Mr Marchese: While the section says that they're repealing that act, this suggests an amendment to it that says that you keep much of what was in the Advocacy Act, but not in its entirety obviously. So it amends it, and I think it's quite in order to comment on parts of it because I think the government might want to consider this part of it. While they may say, "No, we don't in general agree," the government may decide because this is a reformed opinion of that and it amends a part of that, they may want to consider that. I think it's quite in order.
The Chair: Mrs Caplan, I'll deal with you in a moment, but I am ruling that the point of order is in fact invalid and that the amendment is in order.
Mrs Elinor Caplan (Oriole): Couldn't I speak first before you make a ruling?
The Chair: Yes.
Mrs Caplan: I think I'm entitled to speak first before you make your ruling.
The Chair: I'm not trying to in any way curtail your right, but I thought that might shorten it. If it does not, please address the Chair.
Mrs Caplan: Thank you very much, Mr Chairman. In fact I was going to suggest to you, respectfully, that I believe that the amendment is out of order on two counts: one, because it amends a section that I don't think is amendable but, two, because it also commits the government to funds, and an opposition amendment cannot do that without the government's consent. It does speak to funding.
However, I think it is unfortunate that it's not possible to amend the section, and I also believe it's unfortunate that the government hasn't come forward with a plan or a proposal prior to the striking out of the legislation which happens under section 1. It repeals the Advocacy Act.
I think everyone's expectation, given the government's commitment to make changes -- because I think that's what everyone understood when the government said they were going to repeal the commission but they had plans for protecting vulnerable persons in the province -- and given the fact that we have a history in this province of an identifiable need for that protection, it is regrettable that the government has chosen to hold a consultation on the future of advocacy after and during the repeal of this legislation. A much more normal and expected course of events would be to have the consultation, decide what it is that you're going to do, and do the two things at once: change or repeal or amend the existing legislation and bring in your proposal.
I know the government has said that they don't intend legislation, but I still believe that before you repeal legislation your own plan and proposal should be in place. So my advice to you -- and I understand that you're going to rule that this amendment is out of order and I agree with that ruling, but I do think the government --
Interjection.
Mrs Caplan: He said he's going to rule it out of order.
Mrs Marion Boyd (London Centre): No, he did not.
Mrs Caplan: In order?
The Chair: The motion in order, yes.
Mrs Caplan: Then I didn't hear you correctly. I still think the motion's out of order, but I'm pleased that you're ruling it in order as that will give us an opportunity to debate it.
Mr Tilson: Surely before you make a decision you'll give members of the committee an opportunity to debate this point of order. It's a legitimate point of order and it's a very serious point of order. I can tell you that certainly on the opposition side we've all been before committees where this type of amendment is not allowed; it's simply not allowed. When you repeal something outright you can't amend that in any form or other. Ms Caplan is quite right. There is precedent in this very committee, and I suggest, Mr Chair, respectfully, that you consider that, that there are precedents in this committee and every other committee that I've sat on that when you outright repeal something you can't amend that section.
The Chair: Is there any more comment in regard to the point of order we're dealing with right now?
Mrs Boyd: I'd be very interested in hearing Mr Tilson's precedent, because I certainly can't recall a precedent. First of all, this is a government that's very fond of repealing things and maybe there's something that's happened that we're not aware of. But the issue here is if you are going to repeal, this in no way says you can't repeal the Advocacy Act. This motion simply says if you go ahead with an act to repeal, you can only do that if certain other things have happened first. It does not in any way obviate the government's right to repeal, it simply limits the way in which that can happen, so I believe that Mr Tilson's motion is out of order.
Mr Marchese: Several quick things. Just to remind Mr Tilson that he used to sit right here when he was in opposition --
Mr Tilson: I used to try your type of amendments all the time and I was turned down.
Mr Marchese: He was here often, and we on the other side were often accommodating to the opposition. It's interesting how things change when you get into government.
I think the public has an opportunity or needs to have an opportunity to hear the arguments. If Mr Tilson says, "This is repealed," and would, though that motion, kill all the kind of debate that we need to have here so that the public has an appreciation of what we're talking about, it would be shameful.
But this is a proper amendment. It amends it in a way that the government can say: "This is something we can do. In spite of the fact that we want to repeal this generally, this is the least that we can accept out of that proposal." Your motion to say that this is in order is all right with me.
With respect to Mrs Caplan, I was going to say earlier on that she would have had an opportunity to make those arguments she was making with respect to her motion, so I hope she'll comment on them as we do that.
Mrs Boyd: The only experience I've had on a repeal of an act has been the repeal of Bill 8. I would remind the committee that the government itself made an amendment to that bill. It was in order at that time. It was a bill to repeal the Employment Equity Act. So I think there are precedents that certainly say, even if you have that sort of motion in front of you to repeal an act, there are conditions under which it can be done.
The Chair: Is there any further discussion in regard to Mr Tilson's point of order?
Mr Tilson: I just have a comment on Mr Marchese's kind remarks about how I used to sit in his chair.
Mr Marchese: Right here.
Mr Tilson: Absolutely. I will tell you that as far as my suggesting that debate be stifled, that's the whole purpose of when we vote for or against this section. You can debate on the whole issue of the philosophy of the Advocacy Act. It's not my intention at all. I'm simply saying that you're out of order.
The Chair: Is there any further discussion? I reaffirm my ruling that the amendment is in order, that there are no formal restrictions on the amendments which may be moved on a repeal bill and the amendment is not destructive of the principle of the bill. Thank you, Mr Tilson, for your learned submissions. The motion made by Mr Marchese is in order, and therefore I'd ask him to proceed.
Mr Garry J. Guzzo (Ottawa-Rideau): I challenge the Chair.
The Chair: You would have to move a motion, as I understand it, to appeal to the Speaker of the House. You have to move a motion.
Mr Guzzo: I'm not prepared to move a motion.
The Chair: Thank you, Mr Guzzo. Mr Marchese.
Mr Marchese: What we heard in countless submissions that people made was that we needed an Advocacy Act and we needed an Advocacy Commission and we needed rights advisers. We heard that from most of the deputants that came in front of this committee. They said it was a shame that they would have to come here in front of this government to have to make the case again, since they'd been making it for many, many years.
Finally, our government had listened to their concerns about vulnerable people, the experiences they've had as seniors, the experiences they've had as people with disabilities, people with mental problems that they have experienced in the past. They were happy to have a focus point. Their focus point was the Advocacy Act and the Advocacy Commission that gave vulnerable people a voice finally.
We heard many, many people saying, "Although we didn't have to use the services of the Advocacy Commission, we were very happy to know that something was there that spoke to us, that gave us a voice." I agree with them. We've heard many, many stories from people about their vulnerabilities and how it is important for government to be able to say, "We're there to give you a voice and to protect you," because otherwise it makes their situation much, much worse in society.
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What our recommendation does is recognize the fact that this government has a strong desire to repeal advocacy altogether. They understand the government doesn't want advocacy. They understand that you have an opinion that says institutional advocacy is wrong, that somebody else should be doing it. They said that even though we know you have that view and even though we disagree with you, the least you could do is accept an argument that says we need to have something in place, a non-profit, charitable corporation, that takes a cross-disability approach, that coordinates community development, education and training and has authority to undertake systemic advocacy.
These three things are very, very important, because you can't leave the work of advocacy compartmentalized in the different communities, working almost on their own, without bringing all of these concerns that all these communities and the various disability communities have together. They need to be coordinated. They can't be left on their own outside, fighting for their concerns, without the protection, without the coordination of the services, so that we have one voice speaking for all of us as opposed to having 100 voices speaking separately in that regard. We agree with that.
We agree that we need community development that is coordinated, we agree that we need education that is coordinated and we agree that we need training that is coordinated. We recognize that a lot of organizations out there are doing these things on their own and separately, but we don't think that's enough. They've told us that their work in this field is not enough, that it's insufficient, that they need greater support from government and they need legitimacy, by the government saying, "We recognize that it's important." That's why the act was important.
But to leave training and education to those communities that have already been underfunded by this government is wrong. They have said that the people doing the training in the field, as much as they're doing it, are insufficient with the money this government gives them; they can't do it alone. They also said that to leave the work of advocacy and rights advice to volunteers is wrong. First of all, many of their organizations don't have the resources. Secondly, the volunteers come and go, because they burn out in the field.
You can't leave the very serious nature of advocacy and rights advice to people who don't have the skills. You can't get the training long enough to be able to have that kind of power. Besides that, as many have told us, there is no right of entry. Countless people have said, "We knew of many abuses that were going on in a number of institutions, but we had no power to be able to deal with them." Volunteers couldn't deal with them and those organizations couldn't deal with them, because they had no power to be able to get in.
So when you say, "Let the volunteers do it; let the organizations do it," they're telling you: "We can't. If we don't have the power to be able to enter a premise to be able to solve a particular abuse, then we have left that vulnerable person on their own." We can't do that. I don't think a government can simply say, "We don't have a responsibility to take care of those problems." Indeed, they must, because if they don't, they're leaving a whole number of people, seniors and people with disabilities and those with mental problems, on their own. I think that's wrong.
We need a commission that has the authority to undertake systemic advocacy. Why is that important? It's important because what we know is that you can't solve problems piecemeal. You can't say, "We've encountered a particular problem with this particular institution and we've solved it after many, many years of fighting it through legal involvement" without understanding that simply solving one particular case is insufficient. You need to be able to solve systemic problems, and they're everywhere. That's what the Advocacy Commission was going to do, and you're now killing that.
This particular measure that we're proposing keeps only a small amount of the work that commission would be doing, and all the vulnerable people have been saying, "This is the least that you can give us."
You say that the Advocacy Commission was an incredible bureaucracy. We happen not to agree with that. I don't agree with it. But if you felt, as a government, that that commission cost too much money, then why not just cut that back, which you did anyway? You cut it back by $7 million or $8 million already, and it would be further cut back, I have no doubt, but why not keep part of its functions if you felt it was too much? Keep the basic functions of that Advocacy Commission. That's the least you could have done.
Then you would have been saying to the communities out there: "We heard you. We heard you in the last three or four years, because you've been telling us. We heard you over the last 15 years. We heard Father O'Sullivan, who said that this was important. So although we can't sustain this because it's a big activity and it's too costly, we will keep parts of those elements of the Advocacy Commission that we think are good. So we're going to leave you $3 million or $4 million to be able to do that work."
But you didn't do that. You went in your mean-spirited way and said, "No, advocacy is wrong." You said, "Government shouldn't be doing it," and I disagree with you strongly, profoundly. I can't even find a better word to tell you how profoundly I disagree with all of you when you say government should not be advocating, should not be in the business of advocacy. It's fundamentally wrong. Governments should be in the business of advocating on behalf of vulnerable people, because if you don't do it, who else is doing it out there?
Then you'll say, "Oh, but the families are doing it." We heard families coming in front of us saying: "Even we, when we tried to intervene in cases where we saw abuse, had no power. Not only that, we were afraid for the vulnerable person in that institution because in speaking out they were afraid of repercussions." So even the family members who you say are there to advocate and to protect didn't have the power or the wherewithal to know how to protect them even when they knew they should, because they were powerless when they saw that in speaking out, once they went home, they realized that their family member was alone and the abuses would continue, or might continue, because you in fact spoke out against those abuses. So even in those situations, the family members said, "We're powerless."
Even if we admit that every vulnerable person has a family, even there we have a problem, as we said. Countless people told us many of the vulnerable people have no family. So who takes care of them? We don't know. We don't know what your answer is to that. Who takes care of the people who don't have a family member? What is the government's role there?
Well, you say, "We care about advocacy." All of your members have said that. "We care and we're going to support the institutions out there. We're going to support volunteers through training and education." That's all we heard. I'm not sure what that means. When they tell you, "We need the power of entry, we need some authority, we need legislation that gives us authority to do things," when they tell you that and you don't listen, we've got a problem. When they say, "There are no family members to take care of some people and there's no system in place to help them out," we've got a problem. If you don't listen to the vulnerable people and to the consumers who have suffered through this, we've got a problem. You as a government have a serious problem, and you, I argue, are abrogating your responsibility to take care of those people who have no one to take care of them.
The person who came from the United Steelworkers of America said we need advocacy now more than ever. She says:
"In Ontario today, there are more vulnerable people than ever before. Most estimates range as high as half a million. Well, we think our society should be judged by how we treat these vulnerable members of our community."
I agree with that statement. Many people said that: We judge our society by how we treat the vulnerable members of our community.
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"It is no secret that in our view the record of the current Conservative government is nothing short of shocking. Cutbacks to welfare payments have reduced the real income of thousands of vulnerable people who rely on general welfare or family benefits. User fees under the Ontario drug benefit plan have added a new cost for seniors and people with disabilities. The threat of a revised definition for disability leaves many anxious about their eligibility for pensions and access to dental, drug and extended health care plans.
"The repeal of the Employment Equity Act effectively puts an end to job opportunities and accessible workplaces for the disabled. Cutbacks to education have inevitably removed the money for assistance and assistive devices in the classroom. Cutbacks in legal aid threaten the rights and abuse protection relied upon by disadvantaged people. Massive reductions in transfer payments have severely limited access to transportation for the disabled.
"The downloading of services and costs to municipalities have closed community programs designed to reach out to integrate vulnerable people. Bed closures in psychiatric hospitals and institutions for the developmentally challenged have left many literally on the streets in the absence of any community support.
"Cutbacks in emergency housing or shelters leave little room for seniors or people with disabilities who have been abused in an institution or in their own home."
They list a whole catalogue of problems that your government has engaged in that leaves people more vulnerable than ever before. By repealing the Advocacy Act altogether, you're making their situation worse. You are compounding their vulnerabilities, and then you say governments have no responsibility to advocate? We should not institutionalize advocacy? It's absurd.
If you as a government take all their support systems away, then you remove one of the few tools that protects them. You can feel good about that? You can feel good to say: "Oh, but we're going to support volunteers out there to do their job better. We're going to support community organizations that are doing it even though we cut back 5% in their work and we envision for the cuts that we're going to support them to do their job better."
You're taking the Advocacy Act out, the commission and the money support to help them, and you're saying that you're going to help vulnerable people. I don't understand how you do that. I just don't quite understand how you have the stomach to be able to say that what you're doing is going to help those vulnerable people and that you're going to now empower families to do their job better so they can help their vulnerable people even more.
This bill is designed to give families the power that they need and it's going to create more autonomy for those individuals who are vulnerable. How do you have the stomach to explain that to the public?
This bill takes rights away through the act, through the commission and through rights advisers. You're taking rights away for vulnerable people. You're taking away that tool that they had, that they could run to for rights advice, and you're saying you're helping them. I don't understand how you do that.
Eve Gillingham from the Family and Service Provider Advisory Committee said:
"As for relying on volunteers to act as advocates for vulnerable people, it is true that there are many willing and capable volunteer advocates working alongside paid staff in a variety of facilities and community agencies. However, volunteers come and go. Before they can be effective, they need to be trained. Once they are trained, they burn out. Community agencies are also a source of advocates, some of whom are paid through government funding and through other funding sources. However, as these agencies experience cutbacks in funding, their staff is increasingly overworked and, as you know," the case in community and social services, they are often, "underpaid."
That's the reality out there. I'm glad you're listening to these people who come in front of our committee to talk about why it is that we need advocacy, because if you're genuinely listening, you will accept this modicum, modest proposal that says: "Please keep something for us. We need it." If not, you're abandoning all of those people in the last 15 years who have argued, "We need this." You're also abandoning the basic tenets and principles advanced by Father O'Sullivan, one of your own members many, many years ago, who put together the proposal after listening to countless people, vulnerable people, who said, "We need something." You're abandoning his principles as well. But not just his, because his views were a reflection of all of the views that he had heard over the years.
You're introducing an act without bringing something back in its place, and I think that's wrong. Many of your members said: "Oh, but if we had brought something, we would have been accused of bringing something. It would have been attacked. That would have been wrong." We disagree with that view. We've been listening to people for the last 15 years on this matter. You knew what they wanted.
If you had some clear thinking about what you wanted to replace this act with, you would have been able to produce that and say, "This is wrong, but we've got something in its place." You would have allowed the people who came in front of this committee an opportunity to be able to say, "Yes, we think that's all right," or, "We think it's inadequate." But you didn't even give them that opportunity.
You know something else? You'll probably bring something back, if we're lucky, in March or April, as another member said, but we don't know what will be contained in that proposal. You know something else? You're not going to bring this back into committee, to allow the opposition an opportunity to be able to debate that proposal and to allow the deputations an opportunity to speak to the proposals. We think that's wrong. But that's how this government operates: "We'll repeal it and we'll bring something back later on. We don't know what it is and the communities won't have a chance to speak to it." They will not have a chance to speak to it. We think that's fundamentally bad governing.
The Toronto Mayor's Committee on Aging said the following:
"The Toronto Mayor's Committee on Aging believes that people who are vulnerable to abuse may need help to make their own decisions. They require information on their rights and on the options which are available to them, and they require people who can give help to them to deal with issues in culturally appropriate ways."
Later the brief said:
"Ladies and gentlemen, the press release accompanying the tabling of this legislation says it will `give more power to families in care and protection of their mentally incapable relatives.' The Toronto Mayor's Committee on Aging believes that families do not need more power, frail people do. We ask you to reconsider this legislation and allow more opportunity for consultation."
What it says is that frail people need more rights, because it is they who are suffering the problem of a particular disability, and if we don't take care of that individual who otherwise wouldn't have the wherewithal to know how to combat a particular decision that was made against them, if they don't know how to do that, then they effectively have no power and that power has been taken away from them.
The rights adviser would at least be able to be there and provide information as to what they could do; not to tell them what they can and can't do, but to tell them of their rights. That's fundamental; it's in the Charter of Rights and Freedoms. Many people have argued that as the case. It's a fundamental right in the Charter of Rights and Freedoms. We're only extending that right of the charter through these basic rights of the act, of the commission and rights advisers. You're taking that away. Many people have said you will face legal challenges, and I suppose you will deal with that; I understand that. But when you read various sections of the Charter of Rights and Freedoms, they give vulnerable people those protections. The Advocacy Act spoke to that and met that need yet again, in a different form.
Laurie Hall of A-WAY Express said:
"This government is proposing to repeal the act that was to provide a means for these things to happen.
"This government can still provide the opportunity for these things to happen.
"We need access to the tools and education that will allow for community development.
"We need to be able to develop education and training for each other and for society at large to begin to make the changes that are necessary."
The case that is made here is the following: Governments need to stay involved in advocacy. They need authority in law. It should be stated in law why advocacy is important; not to take that law away, not to repeal it altogether, but it should be in law that gives vulnerable people a sense that they're being protected by the government. If you take it away, that protection is gone. It is wrong to say institutionalized advocacy is not our business. We say it's wrong. If you argue it's too costly, make it less costly, but keep the system intact. Don't take it all away.
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This proposal says, to have a cross-disability approach, coordinate through community development, because community development is important. It empowers people. It empowers communities and individuals in those communities. It empowers organizations to know how to be able to do community development in a way that allows for people to have autonomy. It allows for education and training. It's modest; it's not a large amount of money we're talking about here. It has the authority to undertake systemic advocacy.
Subsection (3) says, keep all of the information that has already been collected by the Advocacy Commission. Keep the statistical information collected, the results of community consultations undertaken; because there were many. The training and education programs prepared by the Advocacy Commission, keep that as well. Don't throw it away. The work has been done. You would be wasting a whole pile of money if you took that away. The resource database and lists prepared by the Advocacy Commission of advocacy groups -- all of that is something that has been done. If you take it away, it's a serious, serious blunder this government would be committing.
A number of deputations have come in front of this committee, all of them people who have had a great deal of experience in the field. I wanted to almost get a whole list of them, but they disappear from -- well, here many of them are: Advocacy Commission, ARCH, Toronto Mayor's Committee on Aging, A-WAY Express, Consumer/Survivor Business Council of Ontario, Dixon Hall Neighbourhood Centre, USWA, Family and Service Provider Advisory Committee, Patients' Rights Association from Thunder Bay and countless more.
These people have the experience in the field. If we don't listen to them, then who do we listen to? If we are not informed by them, who have the experience in the field, then who is this government being informed by? If they are only to be informed by some of the medical practitioners who have come in front of this committee saying, "We agree to take advocacy rights advice," and to be informed by a few lawyers who say, "Yes, we disagree with the Advocacy Commission and the Advocacy Act," if those are the only people you will allow to inform you on this bill, you're not listening to those associations that are rooted in the community, that have years and years of experience in understanding how vulnerable people suffer. If you don't listen to them, you're not listening to anybody and your ears then are completely shut.
So I urge this government, through Mr Tilson, who's running it as the parliamentary assistant, and others, to take this modest proposal as the least they could do to listen to all those people who came in front of this committee.
Mrs Caplan: This is one occasion where I'm pleased to say that my arguments were not listened to by the Chair. In fact, I take your advice. I think it's an interesting amendment. I think it is supportable. At the end of my discussion of the amendment, I'm going to ask if it's in order that I amend this amendment by splitting it into two subsections, (2) and (3), for voting purposes, because while I suspect that the first half will not be acceptable to the government, the second half may well be, because it costs them nothing to just commit to not destroying all the information. So I'd like you to think about that. While I'm speaking of it, I'll move that amendment to this amendment at the end of my remarks. The reason I'm saying it at the beginning is so that the government can think about and possibly support that part, which would ensure that all of the work that has been done at expense to the taxpayers is not lost, as it will be helpful to the government as it moves down its future path.
What I'd like to say in response to this amendment, which I'm pleased is in order, is that I think it's a thoughtful and reasonable amendment. I think it is unfortunate that it's necessary, because it would have been my hope that before the government proceeded to repeal the entire Advocacy Act, it would have had its proposal put before us. It is true that during the previous election campaign our platform said very clearly that we were going to repeal the Advocacy Commission, and on that we agreed with the Conservative platform when they said that they were going to repeal the commission as well. I think they went further and said they were going to repeal the act. But where we were also both in agreement was in our commitment to bring in an alternative.
The reason that we said we were going to repeal the commission as it had been constituted by the previous government, the New Democrats, was that there was a very strong sense that it had poisoned the environment. There had been such a strong backlash to the adversarial, anti-professional approach taken by the previous legislation that frankly it was not sustainable and, further, it was not affordable. The $18 million that had been set aside for the purpose of the Advocacy Commission and its work in any time of restraint was seen as very rich and excessive, and for that reason as well we felt it was not sustainable.
Having said that, I spoke during second reading, I spoke during the election campaign of my support for the work of the former Progressive Conservative member of Parliament, Father Sean O'Sullivan, when he identified in 1987 a need for advocacy for the vulnerable in our society. He was very clear in his recommendations that legislation was needed. One of the things that concerns me greatly is that the consultations which are being and have been undertaken by the Minister for Citizenship, Culture and Recreation, Ms Mushinski, clearly say that legislation is not an option.
I share the concern expressed by Mr Marchese that what that will mean is that it will not have the kind of scrutiny of a public hearing, committee work. It will also not have enforceability to ensure the kind of coordination takes place that Father O'Sullivan envisioned. I hope the government will reconsider, because it should not be a basic principle of your consultation that there will be no legislation.
One of the things that I think identifies and differentiates the three philosophies around this table is the fact that my colleagues in the New Democratic Party feel that there is a major and important role for government to play in the delivery of these services. That's a philosophy that we saw during their time in government, and it related to long-term care and so forth. We take issue with the how, even though I think all three parties express a view that advocacy services and support for our vulnerable persons are a necessity. They believe it should be government that runs it.
The Conservatives, on the other hand, by saying, "No law," suggest no role for government. I would like to put forward the view that government's role is to ensure that coordination, not necessarily to deliver the services; in fact, I believe government should only deliver services of there is no other option. I think Father O'Sullivan saw a very significant other option. He was a Conservative and his view of a shared advocacy model encouraged and supported the role of volunteers in support of advocacy. He recognized the need for education and training for the establishment of those standards against which advocates could be held accountable. Accountability was a very important part of his vision in response to the needs of vulnerable persons.
I would say to this government that to repeal this legislation today, without having put in place some alternative, breaks faith with the people you told during the election that you shared Father O'Sullivan's concern about services and the advocacy services for the most vulnerable in our society.
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It's with that sentiment that I will be supporting this amendment, because I believe that before you repeal, you have an obligation to let people know what you're going to put in its place. It's that simple. I don't think there's such a big rush, because, frankly, you've done it and you could contain the resources available. So this isn't a question of cost. That's not why you have to rush to repeal this act. You can contain the cost; you control the purse-strings.
But to repeal the legislation before you have your alternative in place is a broken promise and a breach of faith, and it sends the wrong message. I think you had a pretty good idea of what it was you wanted to do: the consultations that did not take place before this legislation and should have taken place, because frankly, notwithstanding what your ministers have said, I have repeatedly requested the presentations, deputants, presenters to tell us, were they able to meet with the minister to discuss the proposals of Bill 19, and almost without exception -- there were a few exceptions but not many -- they all said they had not been consulted.
I'd like to offer my advice for the future. It is so much better if you consult first, not with those you see as special interest, but with all of those who have a stake in what you're doing. Their special interest is only in wanting to see good legislation. By closing them out, you create a frustration that is unnecessary and it also results in poor legislation.
It is now February 26. Your election was June 8. You formed a government as of July. This legislation was tabled in November. You could have taken the time from July till November to discuss with those people who were going to be impacted by the repeal of the legislation and by the massive changes you're making to the Consent to Treatment Act and to the Substitute Decisions Act, and I think you would have ended up with a better piece of legislation, frankly.
I also think you could have had in place your alternatives to the Advocacy Act that you are repealing with this bill. I think that would have been a better way to make law, that it would have been a better way to govern, because I also think you've missed an enormous opportunity, and the opportunity you've missed by simply repealing is getting everybody's good advice in an environment where they knew of your commitment to provide those services at the same time as you made significant changes and repealed the commission.
You could have done that, if you had chosen then, in the context of amendments rather than outright repeal. You could have done that in the context of having people come forward saying, "We were consulted." While we may not like it all and we wish perhaps that the other had remained, the reality is, and we heard it from presenter after presenter, very few believe that the Advocacy Act and the Advocacy Commission, as brought forth by the NDP, were working and sustainable. We heard from a few who said you didn't give it a chance, but we heard from many that it was unaffordable.
In fact, we heard from the commission itself a proposal to set up a non-profit organization, as this amendment supports. That may ultimately be something that you decide to do, and frankly I hope that you do. But it would be so much easier today for us, as we debate repeal of this act, if we had some idea of what your intentions were.
I'm not going to go on at length. I'm going to conclude my remarks by saying that I will be supporting the amendment, and I'd also like to move, Mr Chairman, an amendment to this amendment that it be split so that subsections (2) and (3) stand alone for the purposes of voting.
The Chair: Do we have unanimous consent on the motion to split?
Mr Marchese: Just to speak to that portion, we have another motion following this that deals with that as a separate one, so we're not unhappy to separate the two because in effect it's the same thing, so we're all right with that.
The Chair: Do we then have unanimous consent that we are to split the motion into two parts so we deal with each section separately? Agreed? Good.
Mrs Boyd: I need some guidance from you then, Mr Chair. Are we only talking about subsection (2) now or are we speaking to both sections? Is it simply the vote that's been --
The Chair: Subsections (2) and (3), as I understand, we're splitting into two separate parts for voting purposes.
Mrs Boyd: For voting purposes only, not for discussion purposes.
The Chair: That's correct.
Mrs Boyd: Thank you. I would certainly want the members of the committee to think back and remember over the last three weeks the faces of the people who came in front of us and who talked about the repeal of the Advocacy Act and who talked about the need, at the very least, for this government to show that the repeal of the Advocacy Act was not yet another blow to the rights and the ability of disabled people and seniors to live in a self-sufficient and safe world.
I think my colleague Mr Marchese listed out very well the kinds of blows that the disabled and senior community believe they have experienced at the hands of this government, when they were promised in the Common Sense Revolution that indeed the rights and the privileges of seniors and the disabled would be respected by this government. That is a long litany of moves that have been taken by this government which, consecutively and taken together, destroy the ability of the disabled to attain and maintain their self-sufficiency in the community.
One of the things that really worries me about this very simple little line in here about the Advocacy Commission being repealed without having anything to put in its place is that it is a very strong, very brief, very terse message to the vulnerable of this province that this government does not respect their needs. It is very difficult for us who met, all over this province, people from the disabled community, people who were the family members of the disabled, the family members of seniors who are gradually losing their ability to deal with life in an independent manner. I think what we are doing is saying to them that we don't care. I think it's very important, certainly from our point of view, that the government understand that that's a very bad message.
When people are vulnerable, they are vulnerable because their power and their privilege is less than those in the community. One of the things that consistently disturbed me as we went around the province and as we sat here at Queen's Park hearing deputations was that almost inevitably those who said, "Yes, let's repeal the Advocacy Act; this is a good idea," were people who enjoy power and privilege by virtue of their professions: lawyers and physicians. They were the people who said this is a really good idea, to repeal the Advocacy Act and put nothing in its place. In some cases we heard health care professionals saying they wanted a repeal of the Advocacy Act, but they were worried and they really did believe that there needed to be something to take its place and they wanted to talk about that.
But generally speaking, the whole notion that this was in any way adversarial was put forward by those people who have power and privilege and who did not want to be questioned, did not want their decisions about what should happen to vulnerable people to be questioned, did not want anyone to have the right to get the information and to access the consumer of the services to assist that person to question the professional judgement of health care professionals.
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If we think of the shocking -- I thought very shocking -- discussion we heard from Dr Singer, a well-known bioethicist whose opinions are respected worldwide on issues of medical ethics, who came before this committee and said, "There's nothing you can do legislatively that doctors will obey," telling government, basically, that doctors will resist any efforts to curb their right to make decisions on other people's part without any kind of advocacy on their behalf, I think that's a very serious thing for us to keep in mind.
We heard very clearly from people a sympathy with the government's concern around cost, and I have to confess I was somewhat surprised about that. We've heard both the Conservatives and the Liberals talk about $18 million being too much to spend on advocacy for 15% of the population. I find it particularly offensive to hear that coming from the government side when they're quite prepared to spend $8 billion providing tax relief to those who least require it, who have the highest percentiles of income in this province.
Eighteen million dollars is not a lot of money. In fact, it's especially not a lot of money when you think of what it saves. Many of the participants who came in front of us said that advocacy was required specifically to enable people not to be such a cost to the government, to enable people to exercise their independent rights. Think of the stories of seniors who needed that rights advice in order to remain in their own homes, in order to remain as independent people. That saves us a great deal of money in health care facilities, in long-term-care facilities, when seniors have that bit of support they need in order to stay in their own homes.
Seniors are right to be concerned that without advocacy and with this bill that's in front of us, and we'll have lots more chance to talk about that, they may be considered to be incapable simply because they are old, simply because someone else judges it to be not appropriate for them to live independently in their own homes.
Just on Thursday afternoon we heard the story about a 92-year-old who was in that position and we heard it from rights advisers, without whose help that person would be in a long-term-care facility, would be costing us as a community a great deal more, would be less independent, less able to exercise his control over his own life, and we ought to be concerned about that.
I'd like to quote from Eve Gillingham from the Family and Service Provider Advisory Committee in Thunder Bay. It's really important to understand that this government has somehow said that service providers and families are somehow pitted against each other under the Advocacy Act. What this person on behalf of her committee was saying was:
"We sympathize with the government's struggles to rein in the deficit. Nevertheless, we strongly recommend that the government not repeal the Advocacy Act unless and until some other independent system of advocacy is in place throughout the province. We believe that it is the obligation of government, not just families, service providers and volunteers, to offer support for advocacy so that the rights of vulnerable people in Ontario are respected and vulnerable people are able to make their own life decisions. Over the past 15 years, it has been demonstrated again and again that there is compelling need for a system of independent advocacy in Ontario. Please ensure that the work of the past decades will not have been wasted."
Laurie Hall from A-WAY Express, an agency founded and run by and for psychiatric survivors, made the comment:
"To us, a system that incorporates the items just outlined" -- which included independent advocacy, education, training and systemic advocacy -- "would be the most efficient and cost-effective system. The cost of the alternatives -- to do nothing or to allow things to slide along as they have been -- has been enormous. To us, it's just a matter of common sense."
This government prides itself on its common sense. One of the issues that we have to look at here is cost-benefit analysis in a very broad sense. Eighteen million dollars may sound like a lot at first blush, and the government has got a lot of mileage with the public out of saying how much too expensive it is to spend this kind of money ensuring that vulnerable people are able to maintain their own decision-making.
Mr Marchese: It'll cost you more.
Mrs Boyd: It is going to cost you a great deal more not to have this kind of a system in place. It is going to cost you not only in human terms -- and the human terms, after all, ought to be far more important than the dollar terms -- but it is going to cost you a great deal in terms of the way in which services are provided in this province. We believe very strongly that what most vulnerable people want is some balancing of their vulnerability so that they can be independent and so that they can make the minimal use of services.
This government talks about the assumptions behind the Advocacy Act. Let me tell you, Mr Chair, our assumption behind the Advocacy Act was very clearly that it was going to be less costly for a government to provide decent services to people if in fact they knew their rights, if in fact they were able to have the ability to act on their own behalf and make their own decisions.
It costs us a great deal every time someone makes a decision on the part of someone that leads to greater vulnerability, yet we heard story after story after story in more than 100 presentations about how that frequently happens, not out of ill will -- and I think that's one of the real issues here -- not necessarily out of ill will but out of a sense of one person, because the person on whose part they are acting, to whom they are providing service or whose family member they are, that somehow their ability to make decisions, their decision-making power, ought to be less than the professional and the family member.
That assumption is what makes systemic advocacy so necessary, because many of our institutions, many of our programs, are built on a sense that if people are vulnerable in some way, then they somehow have fewer privileges as citizens. They are less able to exercise the powers that they do have. We make assumptions all the time about what that vulnerability means, and those assumptions lead us to great cost.
Let's think back to the 1930s, 1940s and 1950s when our assumptions about developmentally delayed people led us as a community to put developmentally delayed people into institutions: very costly institutions, institutions that continue to cost the government of Ontario a great deal of money. Many of those people in those institutions have subsequently been found not to have been developmentally delayed but to have behavioural difficulties that led their families or their caregivers, if they were not families, to think they were better off in an institution.
The work of the previous Conservative government in beginning the move towards deinstitutionalization of developmentally delayed people, which was continued by the Liberal government and continued by our government, was an effort to say, "We made assumptions for years and years, assumptions that are costing us millions and millions of dollars that we could save and costing us millions and millions of hours of contribution by people whose rights have been taken away, whose ability to care for themselves has been questioned by those assumptions."
I think what we need to know is that if the Advocacy Act and the Advocacy Commission are to be repealed, there is some body that can help us, all of us, to understand how our attitudes lead to systemic discrimination against vulnerable people. Unless we are part of a vulnerable group, it is very easy for us to make assumptions that have no basis in reality, and we heard person after person come in front of us and say that.
I'd like to finish by talking about the comment of Mr Robert Froom, who spoke to us in Ottawa. Mr Froom is an example for all of us of what a loving family member, a strong family advocate can do for a member of a family when that person is vulnerable. He talked to us about an intergenerational vulnerability within his own family and the mistakes made by past generations and the efforts made by the current generation in order to maintain those people in dignity and at a level of health that was necessary. He reminded us, and I quote from him:
"We should all be listening carefully to the vulnerable people across this province who are having services withdrawn and their rights removed by Bill 19. At this critical time, a time when new directions are being set and difficult decisions are being made, we need the Advocacy Commission and the Advocacy Act more than ever, yet this is the very time the Advocacy Act is being repealed by Bill 19. Shame, shame, shame."
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We are not naïve. We do not think we can persuade the government to maintain the Advocacy Commission. We understand that politically their comments about the Advocacy Commission have put them in a position where they could not possibly not act to end the Advocacy Commission. We think it's a shame as well and share Mr Froom's view of that. But they do not have to destroy entirely the advocacy that was envisioned and enshrined in that act. It could be done.
If the almighty dollar is going to be the important thing, then the proposal to have a modified non-profit agency funded by government to do that work is not too much to ask. I think the proposed budget that was put forward was about $3 million. Are you really prepared to tell the vulnerable people of this province, people whose numbers grow every day because of the demographics that we know and have presented to us, that $3 million is too much to spend in order to protect their rights, in order to maintain the momentum that has happened in terms of advocacy on behalf of vulnerable people? I hope not, because if you are it indeed will be a shame.
The Chair: I remind the members that the debate is unrestricted as to time except for your good sense, which seems to be prevalent here this morning. I recognize individuals in the order they indicated interest to speak without regard to individual caucuses.
Mr Tilson: This issue of course has been debated for a considerable period of time, and I think Mr Marchese is quite right: This issue of how advocacy is going to be implemented in the province of Ontario is a typical example of how your party differs from our party. We all agree on the need for advocacy in this province. We simply don't agree with the manner and the proposal that was being put forward in your former government's legislation, the Advocacy Act. It's as simple as that.
To comment on the comments that have been made with respect to consultation, I don't think there has ever been an issue on which there has been more consultation in this province, going back during the history of your government, going back to Father O'Sullivan with his review of advocacy in Ontario, You've Got a Friend. Your legislation went through two sets of hearings. There were more than 200 delegates or consumer and provider groups that came to committee to make presentations on your legislation -- when I say "your legislation," I mean the New Democratic legislation -- as well as hundreds more who wrote the government.
Following that were two years of intensive consultations with respect to the implementation of the act. I suspect that certainly members of the opposition -- I know that I did, and I think most of the other members of the government are newly elected members, but anyone who was elected during your term held their own consultations. I know I did in my own riding and listened to groups from all sides. This is separate and apart from whatever your government did. We have spent a considerable amount of time on this issue, and it's a very sensitive issue, there's no question.
Speaking through you, Mr Chair, to Mr Marchese, you gave a very impassioned presentation on your proposal for an amendment, and I don't doubt your sincerity for one moment and I certainly thank you for your comments on the whole issue of advocacy. We agree with advocacy. We simply suggest with this legislation that there is a better approach to it.
Both members of the opposition -- almost everyone who has spoken to date this morning has referred to You've Got a Friend: A Review of Advocacy in Ontario, Report of the Review of Advocacy for Vulnerable Adults, in 1987 during the Liberal government. I'd like to read the first paragraph of the opening remarks, the executive summary, into the record, which comes from You've Got a Friend:
"Ontario needs advocacy.
"More particularly, we as Ontarians need to be advocates.
"Most of us already are. We can do more.
"If we are to improve our society, we must."
The next two issues I want Mr Marchese, who has made this amendment, to listen to.
"Primary responsibility for advocacy must remain with us as individual citizens, as families, as friends and as neighbours of Ontario's vulnerable population.
"Primary responsibility for advocacy education, and the development and support of advocacy services, is the proper role of the government.
"Therefore, this review of advocacy, having considered Ontario's needs and options, recommends a shared advocacy model for this province.
"While recognizing the need for equally dedicated, professionally trained and suitably paid advocates, this review has concluded that the heart and soul of advocacy services will depend upon caring volunteers."
I'm going to read that last sentence again: "...this review has concluded that the heart and soul of advocacy services will depend upon caring volunteers." That, I submit to this committee and to Mr Marchese and the members of the New Democratic caucus who have introduced this amendment, is something I'd like you to consider when you are voting with respect to your own amendments.
Throughout all the hearings, and we've debated this -- you and I have debated this. Our philosophy's different on how advocacy is going to be delivered. We've debated it in the past, we've debated it in the House, we've debated it in committee, we debate it in our own ridings, and it's clearly a difference in philosophy.
I can tell you that families I've spoken to, my own family, resent the state coming along and saying, "We can do it better." We should be doing these sorts of things. We believe in returning to the benefits of family life, and families can look after each other. There are exceptions to that. There are examples where members of family abuse what they're doing in trying to look after their loved ones, and we believe that our legislation will be dealing with that.
As the clause-by-clause continues, we will show that the family comes first in our way of thinking and, as a last resort, the state will then intervene. If there's no one else available or if the substitute decision is being made by people and it's being abused, the state would then intervene as a last resort.
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Our emphasis in this legislation is respect to the family. All members of families are not evil. There are exceptions. I believe the premise of the Advocacy Act in 1992 was that families can't look after each other, that friends can't look after each other. That's what the Advocacy Act was to -- my goodness, you have a power of attorney, someone prepares a power of attorney, and under your legislation an advocate could come in and intervene over the wishes of that designated person. I can tell you that caregivers, members of families found that absolutely unbelievable. They don't want the state to intervene in our lives unless it's absolutely necessary.
I will say with respect to the comments that the advocacy system is not adversarial that even from their own commission there was a presentation -- I wasn't present but I believe it was this past Wednesday, where two commissioners proceeded with a judicial review among themselves.
The government will take all of the views that have been presented to date as it prepares a future direction for advocacy in Ontario and once this process is complete and the plan has obtained cabinet approval, we will come forward publicly with our approach with respect to advocacy.
We are now consulting. We are continuing to consult. With respect to some of the comments that were made by Mrs Caplan, would she prefer that we announce a new system months ago, asking us to say that these committees were a sham and that we didn't intend to listen to the views of the people of Ontario? I hope that wasn't her intention.
Our plan will conform to the stated objectives that any future initiatives should be non-legislative, non-adversarial and take into account the proper role of families, friends and volunteers in the lives of vulnerable adults.
I gather we're debating the two amendments. We're voting separately on them, but we're debating the two amendments together at the same time -- I guess we'll call them (2) and (3). Dealing specifically with the first amendment, this is similar to Mr Reville's approach when he came to the committee. I can tell you that Mr Reville's approach is being considered by the government, as well as other approaches. In fact, Mr Reville's approach with respect to a non-profit, charitable corporation can be done now. You don't need legislation to do that. You can make an application for a non-profit, charitable corporation. It's done all the time. You people did it in housing, for heaven's sakes, with your non-profit housing. You did it all over the place. So that can be done now under the Corporations Act. You don't need legislation to do that now.
With respect to the second amendment, which has to do with the retention of records, we can't get rid of this information. This information has to be kept now, so the amendment's almost redundant because of the Archives Act and the freedom of information act. We can't get rid of it. Even if we wanted to get rid of it, there's current legislation that prevents us from getting rid of it. The government, under those pieces of legislation I just referred to, will retain all information and all records that have been put forward by the government.
I wanted to comment on a couple of things. The Advocacy Act, as has been mentioned, created an $18-million agency to take over the proper roles of families and volunteers. We believe those roles should be performed by the families and the volunteers. The government should come last, and only as a last resort.
The government is committed to the interests, dignity and autonomy of vulnerable people. The Ministry of Citizenship, Culture and Recreation has already begun consultations with families, consumer groups, service providers, volunteers, members of the current Advocacy Commission -- Mr Reville hopefully will continue to assist the minister and other stakeholders with respect to future direction for advocacy -- as well as these committee hearings. These committee hearings: I can tell you that every presentation that was made to this committee, every written report that was presented when people weren't able to be heard but have made written submissions to this committee, will be part of our consultation process.
The Advocacy Act of course was not proclaimed until April 1995 and the commission has never provided any services besides rights advice. Rights advice will continue to be provided in a more sensible and cost-effective way under the Substitute Decisions Act. We will be discussing that when we get into the clause-by-clause section, that portion of this legislation. So the Advocacy Commission is no longer needed to provide rights advice.
When the current legislation, the Advocacy Act, is repealed, and until such time as the government's new approaches to advocacy are put in place, existing advocacy organizations, families, volunteers and self-help groups will continue to provide advocacy services just as they've done in the past. This isn't a new concept. They've been doing it for years.
Certainly, as one of the designers of the current Advocacy Commission and one of former Premier Bob Rae's advisers, David Reville has made several suggestions on future directions for advocacy. We intend to consider those suggestions. The ministry has already begun consultations that have included Mr Reville, and his comments and proposal will be considered as the government develops its new approach.
In summary, with respect to the first amendment, this almost looks like it came from Mr Reville. I don't mean to insult Mr Marchese in that respect, but that was much of what he proposed when he came and that proposal is being examined by the government, as I have indicated, as well as a number of other approaches.
With respect to the second amendment, with respect to the retention of information, "The following material shall not be destroyed and may be used by the government of Ontario in the development and implementation of a new system of advocacy for senior citizens and persons with disabilities." The government can't get rid of this information even if it wanted to because, by law, it can't.
The Chair: Thank you, Mr Tilson. I'd be remiss if I did not introduce the two legislative counsel we have here today, Doug Beecroft and Joanne Gottheil. They were involved in the drafting of these amendments and there might be occasion where they can be of assistance in interpreting or discussing particular wordings of the amendments.
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Mr Michael A. Brown (Algoma-Manitoulin): I come to this debate with some sense, like Mr Tilson, that we've been through this before. I had the advantage or disadvantage of being through the first set of hearings that occurred back in, I believe, 1992 and debating these issues and I'm sure Mr Marchese and Ms Boyd were there also.
One of the dangers in talking about this is that we have these kinds of dry legal discussions about process and about these issues, and I'm sure the public when they're having a look at this are wondering, "What are they talking about?"
What we're talking about are people perhaps in Club 90 in Elliot Lake, those people who are sufferers of psychiatric disorders who are out in the community, who have great difficulty sometimes in accessing services they need, and great difficulty in knowing that they have some say in the way their lives are being ordered. Also, we're having some difficulty in families that call my office, and I'm sure Mr Tilson's and others, saying: "Look, we really need to do something. My son" -- or daughter, aunt, uncle, whatever -- "is having some difficulty and we don't seem to be able to get through the kind of legalities to provide the right kind of treatment".
When I hear Mr Tilson talk about repealing the Advocacy Act, I don't have a problem with that. I voted against the Advocacy Act in the first place, as I'm sure Mr Tilson did and his colleagues in the Legislature. We weren't in support of that. I'm not going to go through the reasons. I think they've been placed dramatically out there. But we do believe in advocacy. Mr Tilson has talked about the kind of huge amount of consultation that's gone on around this subject, not just this act but this subject in general, over 10, 15 or 20 years. He talks about Father O'Sullivan's report.
How long do we have to talk about this until we come to some kind of resolution? I'm amazed, absolutely amazed. You've come to one conclusion: what somebody else did was wrong. You know that, but you don't know what's right. After all that consultation, after your members being through all this, you have the ultimate gall to introduce an act that repeals another act and then say, "But we're going to consult on what to replace it with." Mr Tilson, you're testing our credibility over here. This is remarkable.
We sit here and we hear all members talk about the need for advocacy, we hear all members talk about the real issues and yet you don't know what the answer is because you're going to consult for the answer. You know what the answer isn't, that's the NDP's bill, but you don't know what the answer is. You have to consult about that. To my mind, that just doesn't work.
We should have the ability as members of the Legislature, and through us our constituents, to say, "Mr Tilson, I don't think your plan's going to work either." We should have that ability, or to say: "Boy, you've got it right. We're going to support you. This makes sense. It's going to provide the services, it's going to do what we need and, boy, you've got it right, Mr Tilson. Hooray for you." But we don't have that ability and you have to kind of believe that over on this side we are slightly cynical about your intentions.
I suspect that two or three months from now we'll get this nice little press release from the Minister of Citizenship or whoever that says, "This is what we're going to do." It will all sound really quite nice. It'll be so fluffy and puffy that no one will be able to really discern what you're talking about and then the whole matter will be forgotten.
Mrs Caplan: Till the next inquest.
Mr Michael Brown: My colleague says until the next inquest, and perhaps that's the case.
We are deeply suspicious, cynical if you will, about your intentions. If you were up front with your intentions, we would be seeing your plan right now. You've told me that consultations have been exhaustive. You've told me they've gone on for 15, 20 years. You've told me we agree with advocacy. Yet you can't sit before me today and tell me what your plan is? You can't have it both ways, and clearly that's what you're doing.
We're saying in this province -- and you know it as well as I -- that there is a huge increase in the number of senior citizens. The demographics of this province are changing. That means issues around capacity, about people's ability to make decisions for themselves will increase; it's one of those things we know. Those kind of decisions made by families, made by caregivers, made by the individual, will increasingly become more common. I've been through it in my family; I know what these things are like.
These are not easy decisions to make. I think there's hardly anyone around who doesn't know, and usually they're kind of muddled through. It usually works out really quite well as long as we have caring families trying to make sure individuals can make their own decisions as long as they're capable of making their own decisions. It's kind of a muddly process and the legalities often don't work very well, and we agree with that, but at some point, sometimes we do need some guidelines and we do need some advocacy on behalf of people.
What I really find quite offensive is for you to come and tell me that you want it both ways: "We can repeal this because we've had consultations for 20 years, but we can't put another solution in because we haven't had enough consultation." You're testing us. I'm sure that when you were sitting over here with us, and we spent four or five years sitting over on this side --
Interjection.
Mr Michael Brown: Yes, that was then, this is now -- you would have been up, in your very excitable and charging way, leaping over the top of the desk here saying: "This just can't be. No government could do this." I'm just saying to you, if you sit in the chair of one of your constituents, would you believe this? Would you believe the line you're trying to preach to us today? Would you buy the fact that there's enough consultation to know that the previous answer was wrong but we really need more to determine the right answer? Come on. That's not the way it is.
I just suggest to you, in the interests of Ontarians, that you think about this for a couple of months, come back to the Legislature and we'll finish the clause-by-clause. Let's get at it, because we'll know what your plan is and we'll be able to debate the real issues and not the smoke and mirrors we seem to be talking about today. Quite frankly, we have no ability to either praise or criticize your plan because we have no ability to know what your plan is, and what really frightens me is that we suspect your plan will only be a public relations exercise.
Mr Marchese: I'm going to add a few things, based on things that I have heard. One individual said:
"It doesn't take long to say the words, `The Advocacy Act, 1992 is repealed.' By rights, it should take longer than that. It should take more than six words to dash hopes and shatter dreams. Decades of hopes and dreams preceded the passing of the Advocacy Act in 1992. That there was an Advocacy Act at all was a minor miracle and that the Advocacy Act took the shape it did, well now, that was a major miracle."
I agree with that.
The Chair: Thank you, Mr Marchese. Oh, sorry.
Mr Marchese: It was just a brief comment; I'm quoting someone.
The Chair: You took a breath, Mr Marchese. Sorry.
Mr Marchese: One takes a breather to be able to then say what one needs to say.
Mr Tilson: Just an introduction.
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Mr Marchese: Exactly. My comment with respect to this repeal, these few little words, is that this government, just as with Bill 26, is going too far. The repeal of this act is going too far. My fear is that people will not trust governments as one replaces the other and does a complete abolition of everything that preceded it. It's wrong. I understand modifications, I really do, based on your personal political philosophies that drive you, as they drive us. I understand that. But to completely repeal? It's going too far and you're losing the faith of the public, where they lose faith in governments, and it hurts you as governors and it hurts all of us as politicians when that happens. That's why I was recommending that you not repeal it altogether but that you reform it based on your own political beliefs and what you believe you've heard over the last couple of weeks. That I understand and the public understands, but complete repealing is wrong; it's gone too far.
You add, "Advocacy continues as always." I understand that. Of course it will. But we have pointed out, they have pointed out, those who have come before us, that they have less and less resources to do the job and you've taken yet another tool to do it. You've taken yet another tool that would have allowed for advocacy to have continued. That's going too far; it's wrong.
You also say, "We don't need the legislation and we're doing advocacy as it is," or, "We can just simply set up a non-profit corporation and it's done." Well, it needs legislative authority. If it doesn't have that authority, then it's the same old advocacy that Father Sean O'Sullivan spoke to and against, when he said, "The evidence presented to the review identified a clear need for a coordinated and effective advocacy system in Ontario." If you go back to the old system of advocacy, you're abandoning the vulnerable person. You're refusing to listen even to your own friends who've stated otherwise. If you say you can create this non-profit corporation without any legislative authority, where it has no authority to do things, it's meaningless.
Father O'Sullivan said many other things in terms of his research. He said: "Ontario has a mixture of fragmented advocacy services which are only available to a limited number of vulnerable adults. These services are provided largely by internal advocates employed by service providers, families and volunteer groups." They've always been there, they'll always continue to be there, but he's saying that's inadequate. "In the case of internal advocates there is a perception that they are limited by conflicts of interest which may undermine the confidence of the vulnerable adults in the service." That's what he said. We're talking about years of research, years of talking to people in the field.
"The present system lacks a clear mandate to provide advocacy services as there are no uniform standards of service or training programs for advocates and those who advocate are hampered by the lack of a clear right of access to care facilities, clients and clients' records." That's what he said. Father O'Sullivan, a former Tory member of Parliament, said "there are no...standards of service" and they're "hampered by a lack of clear right of access to care facilities, clients and clients' records."
He said, "Regrettably, the majority of our vulnerable adults, and particularly those residing in smaller communities, do not have access to any advocacy programs," and you're saying, "Let's leave it to families and leave it volunteers and those who've always done it." He said it's inadequate and in some communities there are none.
He continued by saying, "Other shortcomings of a number of current advocacy services include: underfunding" -- that continues and that's getting greater, the underfunding is increasing; you're compounding the problem Father O'Sullivan identified many years ago -- "lack of resources" -- getting worse -- "excessive workloads" -- getting worse because you're cutting them more and more each year -- "lack of direction and support of advocates; lack of supervision of advocates...." Imagine what it would mean to supervise your volunteers. It means a great deal of resources, something the commission would have done. The cost was not excessive, as my colleague said, to do all this body of work that Father O'Sullivan identified, and even if it was too much for you, you could have cut that down and kept with the principles that Father O'Sullivan identified.
He continued by saying, "There are alarming numbers of vulnerable adults who have been abandoned by family and friends in long-term-care facilities in the community." He said that, we know that, people who came in front of this committee told us that, and you keep on saying what we need to do is to restore to families their power. Father O'Sullivan said, "There are alarming numbers of vulnerable adults who have been abandoned by their family and friends in long-term-care facilities...." That's what he said; that's what we know.
You're saying that previous legislation says that all members of families are evil. It's wrong to say that. Perhaps you didn't mean it to come out that way, but it's wrong to say that. Our act didn't say that. Our act gave power to vulnerable individuals to be able to have their say, to be heard, to be self-sufficient, to be independent. That's part of a civil society. It's part of what we have in the Charter of Rights and Freedoms. That's what our act gave. It didn't ever say anywhere in the act that we think families are evil. What stupid government would ever say things like that, except those that want to portray it in that way? I believe that's fundamentally misrepresenting it in a terrible, terrible way.
What we say is that there are some family members who are not doing very well in taking care of their children. What we say is -- not we, but those who came in front of this committee -- that there are many families who in fact are abusive, and it's supported by evidence. I'm not saying this; people in the field are saying this. Those who research abuse say that abuse happens in families and those very close to them. How many is that? There's a statistic that has been put together. There are quite a number of people, families who abuse their supposed loved ones. So you say, "Let's leave it to them"? That's what you're saying, "Let's empower families." If we empower those families, those exceptions where they're abusive, to continue to be abusive and we as a government give them the legislative authority to do so, it's wrong. If we don't deal with the exceptions which cause abuse, then we as a government have abrogated our responsibility to take care of those people. That's what we're doing.
The commission was set up to do that. Both you and some others here in this committee have said that the Advocacy Commission was adversarial. Both you and others here in this committee have said there's evidence that there was division in the Advocacy Commission. But of course there's division in any organization you set up. Does that mean, because you can point to some individual who said, "We disagree with the Advocacy Commission. We were on it and we think it's bad," you then simply say, "Let's throw it out"? You don't do that. You admit that there's a problem, we admit that there's a problem and then you deal with it. But to repeal it altogether as a governmental solution is wrong. People lose faith in you as a government and in you as governing members when you do that, and when you point and make reference to those divisions as a way of saying, "Even they said it was adversarial," I think it's wrong to do that. What we do, through conflict resolution, is say: "What's the problem? Let's fix it." You as a government say: "This is a particular problem. We want to fix that." But you don't fix it by throwing it all out.
Rights advisers were not adversarial. Rights advisers -- and we had three of them or more, who came in front of this committee -- said, "We're there to give advice to people, not to take the right on ourselves to tell them what to do. We identify a problem; we tell them, `This is your right.'"
In terms of advocates and right of entry, if there's an abuse in a system, in a care facility, wouldn't you want someone with authority to go in there and fix it? Wouldn't you want that? If you don't want that, we've got a problem, and if you want that and you're taking all of that away, we still have a problem. If your answer is to throw it back to the volunteers, to the families and the same institutions who have told you -- and Father O'Sullivan told you -- it's inadequate, if you do that, you're abrogating your responsibility as a government and you're failing them, particularly those vulnerable ones. You're going to fail particularly the more and more seniors who are going to come into our society in the next 10, 15 years, because they will become the major part of our population. Those people will become more and more vulnerable as you cut more and as you take away the tools for them to be able to say, "We want to be independent, we want rights advice and we want the basic dignities that the Charter of Rights and Freedoms gives us."
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I know that those who have power and privilege in society have terrible power, and they have power to influence opinion; there's no doubt about that. The doctors came here and said the Advocacy Act was wrong, it was adversarial. We disagree with them and you agree with them, but it's incredible how power and privilege have a way of undermining processes and have a way of making vulnerable people more vulnerable by the day. I'm saddened by that.
This proposal that was suggested by Mr Reville and supported by many in the field is a modest one, and you're going too far in taking it away. On your points about the second part of this motion, where you say that you couldn't do it by law, it's interesting that when you repealed in the same way, with a few little words, the Employment Equity Act, you had no problem saying, "All of the data collected by the employers will be destroyed." It's amazing how you did that so very easily, but now you're saying here it's against the law.
But I'm glad you're saying that you're going to be keeping those data; I think that's very useful. I'm sad for the government, but sad more particularly for vulnerable people, developmentally delayed people, people with disabilities generally, seniors who are very frail. I'm sad for them because you've taken one of the few tools that gave them the power and a voice and you've left them with nothing. We don't know what you're proposing. You'll never bring this back to committee and people won't have a say as to what it is that you're proposing, and that grieves me a lot. I'm sure it will grieve a lot of people that you have done that.
Mr Frank Klees (York-Mackenzie): I just wanted to make a couple of comments with regard to some of the points that were raised throughout the course of this discussion, really for the purpose of clarifying some of the points that Mr Marchese made. While I highly respect Mr Marchese and his passion for this issue, I do find it somewhat disconcerting that he continues to represent this government as a government that doesn't care about advocacy, continues to perpetuate the sense that we do not support and will not support advocacy in the province. Surely part of the purpose of these committees is to hear not only from members of the public but also to have an opportunity to clarify the position of the government and the intent of the legislation.
The role that we have as legislators is to ensure that the message gets out clearly so that people understand in the course of these discussions what the government's intent is. We have continually over the course of these hearings made it very clear that the government does in fact intend to support advocacy in this province, that we intent to support a process of community coordination. We want to encourage people in the community who are providing advocacy and have come forward in the course of these hearings to say that they are in the process of providing advocacy now; when asked if they would continue to do so, they assure us that they will.
So I hope that we can begin to focus in these discussions on the specific recommendations. We intend to improve the legislation. That's why we're here: to hear your recommendations and to ensure that the final product of legislation is the best piece that we can bring forward.
I'm absolutely amazed that we continue to hear that if we repeal the Advocacy Act, there will be no advocacy in the province, that there will be this void, that the vulnerable in our society will not be looked after. Let's be reminded that the Advocacy Act was introduced by the previous government, was only in effect for a matter of months, that there was effective advocacy that took place prior to it, that there will be effective advocacy post the repealing of that Advocacy Act, and that we will in fact deliver, in cooperation with the people in this province, effective advocacy.
We don't agree that it should be done bureaucratically. We have yet to see how additional layers of bureaucracy can improve delivery of service in this province. That's why, as a government, we're in the process now of undoing a great deal of damage that's been done over the years as a result of philosophies that felt that government can do everything better than the private sector or than the volunteer sector or than people in this province. Surely by now there's enough evidence to show that we cannot continue to lay on layer upon layer of government bureaucracy and expect effective service delivery.
Now, we've said that we're prepared to consult. We've said that we're prepared to listen to people, to help them, to look at various models and, yes, Mr Reville's recommendation is one of the recommendations that we're looking at. How many more times do we have to say that?
To say that there hasn't been consultation on this -- again, I refer to Ms Caplan's reference earlier that there's something wrong with the fact that we don't have something in place right now before we repeal the Advocacy Act. Again, I remind you, there are many things in place in this province. Right now, as we speak, Ms Caplan, advocacy is going on in this province. You are well aware of it. It's not as though we're repealing something and there is a void of advocacy.
What there will not be is a bureaucratic structure. We have all of the information that's been gathered by that commission. We have already said that we will look at that information carefully. A lot of the work that's been done are assets of this government. We'll take the training material, we'll look at many of these things and incorporate all of those things that are positive, that we can use to advance the purpose of advocacy in the province. We're committed to doing that, but we want to do that in the most effective and most efficient way that we can.
I want to address another issue that Mr Marchese referred to earlier today and that's the issue of abuse. As we've heard in the course of these hearings, there is abuse that goes on in the province and has for years. Your answer to that seems to be that we have to have the Advocacy Commission to deal with abuse. I suggest to you that it's not advocacy that we need to deal with individual abuse events that take place. We have to go to the root of the problem as to why that abuse is there. Why is it allowed to continue in some care facilities? It's not that we need another level of government to deal with that. What we need to do is address the individual ministries under which that is taking place and deal with an effective way of getting into those institutions.
You don't need right of access through this bill into long-term-care facilities. That right of access is available in all three acts that deal with long-term-care facilities in this province now. If in fact there is an indication of abuse, inspectors have right of access to these facilities. Now, what hasn't been happening, and that's what we have to deal with here as I think an outcome of these hearings, is that now we have to redirect some of our focus into some of these other areas and ask some serious questions of the various ministries and the bureaucracy to say: "If we know that there is systemic abuse, that there is abuse taking place in some of these facilities, why aren't we dealing with it effectively under the existing legislation that we have in place?" I think all of us, as members of this government, say it's time that we started to ask those hard questions of the ministries to say, "Why are these things continuing to go on?"
But surely we don't have to create another level of bureaucracy to deal with that. What we're trying to do is become much more efficient at what we're doing as a government and ensure that more dollars get to the front lines, where we can affect the people who need the dollars most. Eighteen million dollars, Mr Marchese -- and I'm not sure if $3 million is the right amount to saw off, or whether it's $1 million or $500,000; that's what we're looking at. But to say that we, as a result of repealing the Advocacy Act, are leaving a void in Ontario is absolutely incorrect.
What I'm saying to you, and the message that we're putting out to the province, is that we will continue to work with those who care deeply about advocacy. We invite them to help us build a system of advocacy that is not legislation-based but is based on effective delivery of that service. I ask you, Mr Marchese, to join with us, to work with us, and Mr Reville, with all of the wealth of information and experience that he has, and those people who've been trained to this point, to work with us to build an effective model that all of us know has to be delivered but delivered within the context of what we can afford.
The Chair: We will recess to 1:30, and at that time Mrs Caplan and Mr Parker will be the next speakers.
The committee recessed from 1203 to 1330.
The Chair: I call the standing committee on administration of justice to order, and our first speaker will be Mrs Caplan.
Mrs Caplan: I wish we had an Instant Hansard from this morning, because I listened very carefully to what Mr Klees had to say and I agree with his last sentence. I can't quote exactly, but to paraphrase -- and I hope I'm being fair. When Hansard's available we can check it and perhaps I could ask Hansard to substitute his exact words for mine, if my memory --
Mr Michael Brown: It'll be fine.
Mrs Caplan: My colleague says I'm going to be fine.
He used words that, frankly, I hope he will not regret. What he said was that the government supports an effective system of advocacy, and acknowledged the need for that. As I try to give you my thoughts on this amendment to section 1, part I, which repeals the Advocacy Act, I'm not going to read into the record, once again, those comments of Father Sean O'Sullivan, who was the Conservative MP for Hamilton-Wentworth, but I'm going to tell you that the comments Mr Marchese read in were accurate, and I'm just going to repeat a couple of small things that he said, because in fact they sit with what Mr Klees and other members of the government have been saying.
Sean O'Sullivan said in his report that his report "identified a clear need for a coordinated, effective advocacy system in Ontario." That was in 1987. As my colleague Mr Brown said, we have been debating and discussing and consulting and studying the need for advocacy services, but more than that, it has been whether or not there's a role for government in the development of an effective, coordinated advocacy system.
Where I take issue with Mr Klees and Mr Tilson and the government members is that we do not have in place today a coordinated, effective system, we have a fragmented approach to advocacy services in the province. They are quite correct when they say there are a number of groups and individuals and families and friends who have been advocating on behalf of the vulnerable in our society. We also have a litany and a history of inquests and of horror stories of vulnerable people who have been abused and abandoned.
We heard from the Ontario Nursing Home Association which came here before this committee and told us that the numbers of cases of elderly who are abandoned in the nursing homes and homes for the aged and long-term-care facilities in this province is on the increase.
And so the issues that were identified over the years, and most particularly put succinctly by Father Sean O'Sullivan, the former Conservative MP from Hamilton-Wentworth, are the same issues today only they're worse. We know that.
I also want to put on the record that where I differ from the Conservative government's approach to advocacy -- their approach is repeal this and let's talk about it. That's the approach they put forward. Where I differ with them is I believe that the people of Ontario thought they had a plan. When they went to the people last spring, 1995, in an election, and they said all the things that they said and much of the rhetoric that Mr Tilson has repeated here at committee, I think -- because my constituents when we had all-candidates meetings -- I have to tell you I didn't hear much of this at the door when I knocked on many doors. But when we were at all-candidates meetings and I would ask a question or someone would raise the issue, there wasn't a lot of it raised. I never heard it at the doors, and I can think of one all-candidates meeting where the issue was raised. Certainly the response from my Conservative opponent suggested that Mike Harris and the Conservatives had a plan.
If my memory doesn't fail me, he used those words. "Our plan for advocacy services would include" thus and so. It is reasonable, it's a reasonable request to say, "Before you repeal something, tell us what your plan is." What we are sceptical and cynical about, my colleagues and I, is that after years of discussion and years of consultation and reports that have clearly identified the problem, you didn't consult on changes to this important legislation prior to tabling it, and you set up a consultation on what should we do for advocacy, when I think what people expected was that you would bring forward your proposals and repeal or make changes to the NDP approach.
That's why people are questioning not only your lack of a plan -- they're saying, "We thought you had a plan." They're also questioning your commitment, and the very fine words from members of the government caucus are not giving anyone any assurance, because the principles under which your consultation is taking place not only suggest that you don't have a plan but that they have no idea what or when or how, and they question your commitment to what your colleague Father Sean O'Sullivan called for, which required three things: coordinated, effective and a system.
To suggest to anybody that what we have today is either coordinated or effective or a system is false. We do not have anything that is coordinated, we do not have anything that is a system, and by it's very nature, that fragmentation, while there are some effective advocates out there -- I don't want to diminish anything that they're doing -- is not effective in achieving the goals as stated in the O'Sullivan report.
I'm not going to belabour this. The last point that I would make is, in the absence of your plan, in the absence of any suggestions for what is going to come next, and I wish I had that alternative because frankly I have a lot of respect for David Reville, I have a lot of respect for the people who came forward and who suggested that a non-profit agency was a good idea, I know that there are other alternatives. But until I know what other alternatives are on the table, I see this as an all -- meaning repeal -- or nothing, because you have not put forward any other alternatives.
While I support the repeal of the commission as it was constituted by the NDP, I and our caucus support O'Sullivan's urgings and call for a coordinated, effective system for advocacy. And what are the components of that? The components of that must be education. The components of that must be the development and standards against which you can measure effectiveness. The components of that must be an openness and an accountability that will allow for the development of a system as opposed to fragmentation. It doesn't necessarily mean one size fits all for every community, but it does mean understanding that there are needs in communities that are not being met, that are being overlooked.
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So I have concerns, tremendous concerns, about your commitment, and I am going to be supporting the amendment that is before us with a view that at this point it's better than nothing. Since you haven't told us what your alternatives are, there's nothing else for me to support, and we have heard support for this type of model. In that vein, I will be supporting it.
I say to the government members that when you're going to be repealing a piece of legislation that is as potentially significant as this advocacy legislation, I think you have an obligation to at least let people know where you're going.
I don't see the amendment before us as perfect. It certainly doesn't oblige the government in any way other than support for a non-profit agency. It seems to fit with your view that government, other than through some resource and support, should not be directly involved. Therefore, I think it's a model that you could well live with, and in that vein I will be supporting this amendment.
I'm not going to speak again at length on this issue, and I hope the government will consider support for this amendment, but I do want to say that I think it is important that changes be made to the existing Advocacy Act and that the Advocacy Commission be dismantled, because it has created a climate that I think has to rapidly be changed.
I get concerned when I hear the rhetoric from Mr Tilson and the suggestion that all is well in Ontario today and that there is no need for a coordinated, effective advocacy system, that you can rely wholly on well-meaning friends and family. If that were true, there would be no child abuse, there would be no elder abuse, there would not have been the horror stories that we know from the past, from institutions, whether they were mental health institutions or, frankly, some of the nursing homes and homes for the aged. We know of those stories. We depended on organizations like Concerned Friends to alert us. We always responded in horror to those terrible stories. We know of the multitude of inquests.
Fortunately, that's not the majority, but as Sean O'Sullivan said, our role is to make sure that the minority of those vulnerable people who are potentially abused, those people who my colleague Mr Brown identified from his community -- because this legislation is about people, people who are not being cared for by their family, people who have been abandoned by their family, people who have no friends, people who are vulnerable and in need because of their powerlessness and their helplessness. To deny that they exist is wrong. To deny that the situation is better today than it was in 1987 is wrong.
Just because you don't like the approach of the NDP -- and I didn't like their approach; I did not vote for the Advocacy Act -- just because you didn't like that approach doesn't mean you don't have an obligation to say what you do like, to give some comfort at a time when we've heard from deputation after deputation of individuals and organizations that say something is needed. To say to them, "Maybe in the future you will see something," is just not good enough, especially when you campaigned on your commitment to the vulnerable in this province. Then to say after the election, "Well, we never really had a plan. We're not really quite sure what we want to do. We know we don't want to do that. That which the NDP did is bad, but we're not going to tell you what we're going to do. We're just going to repeal that," makes people cynical. That makes people question your commitment.
This is far too serious to let go without repeating Sean O'Sullivan's words, which you read accurately, Mr Tilson, into the record; I read them into the record as well during second reading. I state very clearly that I support his intent and his goal. I do believe that there is a clearly identified need for a coordinated, effective advocacy system in Ontario and I believe that government has a role in facilitating that. Given all the fine words from the members of this committee, since you don't have a plan of your own and you're not committed to any specific amount in this amendment, this is not unreasonable for you to support.
Mr John L. Parker (York East): I will not speak at length, I'll keep my remarks brief. I want to take this opportunity just to respond to two points that have emerged so far during today's discussion. The first follows quite logically from the remarks we just heard, which underscored remarks from the Liberal caucus earlier this morning, the thrust of which is to criticize the government for introducing this legislation in its current form to repeal the Advocacy Act without presenting the alternative before the Legislature at the same time. I find that argument and that approach difficult to square with the campaign posture of the Liberal Party during the recent campaign. Right now I'm looking at page 30 of the Liberal red book. I've only got page 30; I haven't got the rest of the book with me.
Mr Michael Brown: It's good reading.
Mr Parker: It's very long reading; it's a very lengthy book. It says here that within the first 30 days of a Liberal government a Liberal government would, "Stop the implementation of the NDP Advocacy Act, scrap the Advocacy Commission, and move to bring in legislation to meet the needs of vulnerable people." That sounds a lot like the type of thing we are doing right here. If this were to be done in the first 30 days of a Liberal government, then I wonder when they were going to work out the details of the legislation that they were going to introduce.
Mr Marchese: Later.
Mr Parker: Later. I think you're right, Mr Marchese. If they were going to do it in the first 30 days, to me there are only three propositions that make sense in the face of this pledge. One is that they already had their plan, they already knew what they were going to do and it was just a matter of unfolding it in the first 30 days. If that's the proposal, I wonder, why wasn't it introduced during the election campaign? Why wasn't it in the red book? The red book was thick enough to include the details of any sort of alternative that they might have proposed to the Advocacy Act, but it wasn't in there. The pledge to get rid of it was in there, but there was no alternative in there. So that proposal somehow just doesn't make sense to me.
Mr Klees: Maybe they were going to table it later.
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Mr Parker: Maybe they were going to work it out in their first 30 days. Somewhere in that 30-day period they were going to figure it all out; I don't know. If they were going to do it in 30 days, I wonder how much consultation they could do. I wonder how many legislators they could involve. They certainly couldn't involve very much committee time in that 30-day period. They couldn't involve very much debating time in the Legislature in that 30-day period. Frankly, I don't know whether this 30-day period refers to the first 30 days of taking office or the first 30 days after the Legislature is called; I honestly just don't know. Either way, it seems to me a very tight time frame to do something that is quite significant if they're going to accomplish all the things that seem to be implied by this commitment, given what we're hearing today, that it would be irresponsible or inappropriate or somehow indefensible to remove the Advocacy Act and scrap the commission unless and until you have the replacement all worked out in all its detail.
There's a third proposition which could be possible, and that is that the Liberal Party, at the time of the last election, recognized, as we did and as thousands of people across the province did, that the Advocacy Act was just bad legislation. Whether there was an alternative to put in place for it or not, it was just bad legislation. That logic, that argument kind of makes sense to me, given the 30-day time period that we're talking about here in the Liberal pledge. I think that just might be the answer to my question, that the Liberals recognized, as we did and as people across the province did, that the Advocacy Act, as passed by the previous government, just wasn't worth keeping around past 30 days.
The first thing to do is get rid of that, "scrap the Advocacy Commission, and then move to bring in legislation to meet the needs of vulnerable people." Now, note that the commitment here isn't to introduce legislation, isn't to have it in place, but to move to bring it in. Well, that sounds an awful lot like, "Let's get rid of the Advocacy Act, get that done, and then we'll get to work planning something that meets those goals in a better fashion."
Mr Klees: In consultation.
Mr Parker: I would think that the Liberal Party, being honourable people, would want to consult on that matter, as my friend Mr Klees is suggesting. They would want to involve as many people as possible on that matter. They wouldn't move rashly and in undue haste to try to rush something before the Legislature, before a committee. They'd want to talk to people. They'd want to hear what other people had to say. They would want to give Mr Reville a chance to come up with an alternative.
Now, we heard an alternative from Mr Reville just in the last few weeks; not last June, not last summer, but just in the last few weeks. He had an alternative that's a $3-million proposal. I don't know if that's the way we want to go, but at least that's a new idea that wasn't around last spring during the election or in the months following the election.
I don't know if it would have been fair to have rushed anything new in the first 30-day period without giving everyone with an interest in the matter a chance to bring their thoughts forward. Some new thoughts have emerged in the period of time that we've already given the matter.
We heard the suggestion earlier this morning that this whole subject has been debated and hashed around for years; for 10 years, for 15 years, for 20 years. Why do we still have to consult? Why do we still have to talk to people? What else do we have to learn?
That's an attitude, that's an approach, that's a proposition. It's not one that we happen to embrace, but if it is the case that the matter has been thoroughly analysed over the last 10, 15, 20 years, and if that is the position of the Liberal Party, then I would expect, being reasonable and honourable people, they would have had their proposal ready to put before the people during the election and that would be part of their 30-day proposal. Certainly within 30 days they were going to get rid of the Advocacy Act, they were going to get rid of the commission. So if they had a proposal ready to go, if all the necessary consultation had already taken place, it would be reasonable to assume that they would have had their proposal ready to put forward, particularly in view of the remarks we're hearing today.
But I kind of suspect that's not the answer. I kind of suspect the fact of the matter is that the Liberals on this matter are exactly where we are; it's just hard for them to admit it. They recognize, just like people across the province do, that we've got to get rid of the Advocacy Act; it's just bad legislation. It will take time and it will take a great deal of consulting and discussion and analysis to come up with another piece of legislation, if that's the way it's to be done. If it's to be done by legislation, it will take time to come up with something else, but in the meantime there's no reason to let a bad piece of legislation sit on the record. Those are my remarks in response to that one point.
The other point that I just wanted to touch on briefly was an argument that we heard from the NDP caucus this morning. If I can boil it down to its basic elements, it was that the good guys care about the poor and unfortunate and marginalized and those who are vulnerable, and they prove it because they're prepared to spend $18 million to finance an Advocacy Act to address the problem. The bad guys don't care about the poor and the marginalized and the vulnerable because they can't find it in their heart of hearts to scrape up the $18 million it will cost to implement this legislation, which will solve all of those problems. The budget is so important to this government and finding savings is so important to this government that we're not prepared to pay the $18 million it would cost to implement this miracle cure.
I just want to respond to that with the observation that it has not been the position of this government that $18 million is too much to spend on a cure to the problems that we are talking about here today. You're not going to catch me saying that $18 million is not a lot of money. I will not say that; $18 million is a lot of money. But $18 million is not too much to spend if it will do the job as advertised. Where we part company is not on the willingness to spend $18 million on something that is going to do the job that should be done; where we part company is in the confidence or lack of confidence that this piece of legislation, the Advocacy Act, was going to do that job.
It is the position of this government -- and I think it's the position of the Liberal opposition -- that the Advocacy Act wasn't going to do the job and it would be $18 million of public money that would be inappropriately spent. I frankly don't care whether it was $18 million or $50 million or 50 cents. The amount of money that's proposed for it is not the issue, and that has not been the position of this government. We have not discussed how much it costs; we've discussed whether it's any good. Our position is that the Advocacy Act and the Advocacy Commission and that whole apparatus and that whole approach to the problems we have been discussing are the wrong way to go.
The Chair: Thank you, Mr Parker. You certainly, no doubt, have stimulated some degree of debate.
Mrs Boyd: I certainly wouldn't debate with Mr Parker about the Liberals and the Conservatives being exactly the same; I have no problem with that. You're quite right, in that what they were offering is exactly what you're offering, which for the vulnerable people of this province is not acceptable.
I must say that I've got really tired of both the Conservatives and the Liberals quoting the O'Sullivan report and talking about how wonderful it was and all the rest of it. We heard again and again Mr Klees, Mr Johnson and most often Mr Clement quoting from the introduction and background to the review, the very first page. One can only assume that this government didn't go any further than the first page, and frankly I suspect the same thing of the Liberals. So let's go a little bit further.
This morning Mr Marchese talked about some of the things that were going to be necessary for advocacy to work, which included resources and included personnel and so on. But let's really look at what Father O'Sullivan came down recommending, which was the shared model of advocacy. He talked about the following "criteria and goals of an ideal advocacy system," and that was what they were measuring these various models against. Those goals and criteria were as follows:
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"(1) Safeguards against unnecessary guardianship," with which we all agree. I think all three parties have said we have to prevent unnecessary guardianship; that is not the best way to do it. I think we're all in agreement there.
The second point was very important: "(2) Independent (from ministries affected, funding sources, providers)." So independence was required.
"(3) Encourages self-advocacy where possible (self-sufficiency, self-determination)." Certainly I think we all agree with that, and I think that one of the government's complaints is that they think proactive, independent advocacy is somehow going to detract from self-advocacy. Father O'Sullivan's reports says, no, in fact you get self-advocacy where you're teaching people by modelling the behaviour how to advocate on their behalf and you encourage them in every way possible, in a proactive way. What the government is offering is some kind of a reactive thing. In other words, those who are most vulnerable, in their most vulnerable position, need to speak up on their own behalf, with no one there to protect their interests, and put themselves in double jeopardy, and I'll talk more about that later.
"(4) Enhances role of families and volunteers." I think all of us here are agreed that part of what we need to do is make sure that, to the extent possible, supportive families and supportive volunteers are going to be there to advocate for the vulnerable. That doesn't mean that all families are equal, that all volunteers are equal or that the community can manage that kind of advocacy without having the intervention of those who are both accountable but also have the power to advocate on their behalf.
"(5) Educates (families, volunteers, community) -- delabels, destigmatizes, identifies gaps in services and promotes awareness that advocacy is everybody's business." I think time after time the people who came in front of us, even those who wanted the Advocacy Act repealed said, "But we have to put in its place a body that will do that."
"(6) Flexible" -- flexible enough to meet -- "(special needs, geographic requirements, multilingual).
"(7) Responsive (personal concern, carries forward complaints, endeavours to resolve them)." In other words, a proactive approach, not a passive approach, where someone carries those complaints forward.
"(8) Promotes cooperation with providers and ministries." We've all heard, to our great concern, that the current Advocacy Commission apparently was not able to do that well enough, and I think we all recognize that if all that was set up was an adversarial kind of a reaction, none of us thinks that's very positive. So whatever takes its place needs to promote cooperation. We need to be very clear about that. But I would just caution that it's a little hard to promote cooperation when you are identifying areas that in fact make the vulnerable more vulnerable. That sounds uncooperative, when you criticize providers, and that's exactly what we heard again and again. Providers did not like the sting of criticism. They did not want to be told that what they, in all good faith, were providing was not what those who were vulnerable wanted.
"(9) Accessible.
"(10) Seeks improvements in programs (reformative)." In other words, is reformative, has some power to say to those running programs and planning programs and doing policy that we need to reform these programs. The programs are the problem, not the individuals receiving the programs.
"(11) Has clout." That's very important. How do you have clout? You have clout because you're legislated, you've got a job that you have to do, and no one can deny you that, because it's legislated. You ask people who volunteer as advocates out in the community what kind of clout they have when they come up against a health care provider who won't listen to them and their advocacy on the part of the vulnerable, and they'll tell you they have none.
Mr Marchese: They told us.
Mrs Boyd: They told us again and again.
"(12) Accountable." We need somebody who's accountable. If we scatter advocacy among all these various different groups, groups that represent people who suffer from one particular disease or condition or another, groups that are organized by faith communities or are organized according to a specific geographic location and so on, and if we don't have an overall look at what's happening, if we don't have an accountability built into this, it isn't going to work. It'll be little individuals out there all over the place doing advocacy work and we won't have any way of measuring or determining what the overall effect of that is and how it is furthering the cause. It'll be people reinventing the wheel again and again and again in every community across the province, and that is not the best way to help those who are most vulnerable.
Those were the criteria and the goals. Father O'Sullivan's group came up with the shared-advocacy model, and let's listen to what that shared-advocacy model was. It's not very far from the Advocacy Act, which all of you decry.
(1) "This model is based upon a sharing of responsibility for the delivery of advocacy service among government, volunteers and community groups," which indeed was envisioned by the Advocacy Commission. In fact, one of the major issues for the Advocacy Commission was to foster that, to understand what groups were out there and to give them the tools in order to advocate more effectively. That was built into the Advocacy Commission's mandate and its role.
(2) "It is an evolutionary/slow-growth model which draws upon the successful experience of the Ontario legal aid clinic funding program by encouraging community groups to develop advocacy service programs to meet the particular needs of their community and to apply for funding these programs."
(3) "Implementation of shared advocacy will occur over a period of two to three years. The first step is the establishment of a provincial Advocacy Commission with a clear mandate to provide non-legal advocacy services to vulnerable adults residing in all institutions and care facilities and in the community" -- a really good description of the Advocacy Commission as formed by the Advocacy Act.
Mr Tilson: Mr Chairman, on a point of order: I have no problem with Mrs Boyd continuing on with her debate in the form that she's giving it as long as we understand that the debate we're proceeding with deals with both the amendment and the section.
Mr Marchese: Absolutely.
Mrs Boyd: Absolutely.
Mr Tilson: I don't want to go through all this again when we start talking about the -- if Mr Marchese's amendments are defeated, I don't want to hear the same bit again with respect to section 1.
Mrs Boyd: With respect, average intelligence sometimes takes six tellings.
Mr Tilson: I have learned for the last four years that that doesn't necessarily apply, but if I have your undertaking that it won't continue, that's fine.
Mrs Boyd: (4) "Responsibility for the provincial program is vested in an independent Advocacy Commission which is to be appointed by the Lieutenant Governor in Council" -- another good description of the current Advocacy Commission.
(5) "The commission will report to the Legislature through the Attorney General or a redesignated standing committee on the Ombudsman and advocacy." That wasn't the way that was expected to be. It was supposed to go through the Minister of Citizenship, Culture and Recreation, as I recall in the act.
(6) "Legislation should be developed which also contains clear statutory authority" -- statutory authority -- "for trained and certified advocates to have access to institutions and care facilities where vulnerable adults reside, and in the case of those living in the community, the right to meet in private." We heard again and again from the vulnerable groups represented in front of our committee that unless you have that right of entry and that guarantee that you can meet in private with people, you cannot advocate on their behalf.
(7) "The legislation should also provide authority for certified advocates to have access, with the consent of the patient, to the patient's medical and treatment records." Again, without having that access, again with the consent of patients, it's very, very difficult for people to advocate on their behalf.
(8) "The commission would maintain a small central office with staff experienced in the following areas: training and education; the needs and concerns of frail elderly, developmentally disabled, psychiatrically disabled and physically handicapped persons; and relevant legal issues." As government bureaucracies go, if one looks at the organization of the commission, that's precisely what the commission was.
Last, "Direct advocacy services would be provided through regional offices covering the province and through local advocacy programs." In fact, the way in which the Advocacy Commission had developed to the point where it was stopped, it was an even leaner situation than that. They didn't set up regional offices, they set up individuals out there in the community at the end of a beeper and a centralized dispatch service to assist them. So it was even leaner than was envisioned by Father O'Sullivan.
It's important to get that on the record, because we hear how wonderful the introductory comments are about all of us sharing the responsibility for advocacy, and we haven't heard that what Father O'Sullivan envisaged was very much what the Advocacy Act created. Both the Conservatives and the Liberals have praised Father O'Sullivan to the skies, yet what he recommended neither of them think is appropriate, and I think it's very important to know that.
It is really difficult for us to engage in a discussion about the supposed bureaucratic convolutions of the Advocacy Commission and the cost of the Advocacy Commission, because what seldom gets acknowledged is that the Advocacy Commission, which began its work when the act was proclaimed on April 3, 1995, had its work interrupted by the withdrawal of funding early in the summer of 1995 and never was able to perform most of the tasks that were assigned to it in terms of advocacy on behalf of people.
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They had done a marvellous job in terms of rights advice. We were fortunate that several of the rights advisers came forward and told us what that was like, what kind of cases they actually were dealing with and the way in which they dealt with them. I think most of us know that this means of providing rights advice in fact was proactive to the extent that there was an assurance that people understood their rights, but if they decided to exercise their rights, there was some assistance in terms of making sure they knew what the process was and that the forms were filled out and all of that.
There's a fine line between advocacy and rights advice in some cases. As we go on, I know we'll talk more in many other sections about the issue around rights advice, but it's very important for us all to acknowledge that rights don't exist if people (a) don't know they exist and (b) have not got the means or the ability to pursue their own rights. That's why it is so important that we understand that the principles and the whole function of the Advocacy Act was to make sure that the rights, which supposedly all of us as Canadians enjoy under the Constitution, for a group of vulnerable people who have very little ability to ensure that those rights are being followed, with their caregivers, with their families -- that they have the ability to, first of all, understand what their rights are and to exercise their rights in the appropriate way.
What the withdrawal of the Advocacy Act does, what the removal of that does, is what we heard again and again from people in the community. I urge the government to understand that putting something in its place, giving an assurance at the same time that you're withdrawing with one hand, that you will in fact replace with the other hand, is very important.
Let's remember some of the words that people were saying when they were talking about the withdrawal of it. Steve Balcom, talking in London, from the Independent Living Centre: "Speaking from years of experience in this area, of not just myself but many other colleagues, there's a naïve presumption by this current government that the voluntary sector is going to become the fourth level of the safety net. We're not that naïve." People in that circumstance are not that naïve.
We heard again and again from those who are most vulnerable about their concerns about the value of their life to a society that is constantly focused on the bottom line of the budget. And we come back to this. Mr Parker said that $18 million is a lot of money -- and it is; none of us would say it isn't -- as though it's too much money to spend on this group.
I don't think I've ever felt quite so embarrassed or uncomfortable in my role as a legislator as I was in Windsor, Ontario, when Mr Ralph Evans came before us, speaking on behalf of the Association of the Physically Handicapped in Windsor, and on his own behalf. Mr Evans has ALS, Lou Gehrig's disease, of, I believe if I recall correctly, 14 years' duration. So he has managed very well in that he is still mobile enough to come before the committee, still mobile enough to speak to us, still active enough to be able to express himself very clearly about why the Advocacy Act and the Advocacy Commission were so important to someone like him who has no family available to him and who needs to know that there is a fail-safe there if caregivers do not respect his rights.
The response that Mr Evans got from the government was quite a lengthy lecture from Mr Klees about how expensive the Advocacy Commission was and how it was not fair to expect $18 million to go into advocating on behalf of the vulnerable. I was ashamed to sit there, as a fellow legislator, and hear that response to a person who was trying to say what it was like to be in his place, to see the view, the constantly ever more restricted view that he has as a person.
Now, I know Mr Klees to be a person who values life very highly and I know him to be a very, very strong advocate of the right of individuals to enjoy that life, so I in no way mean to suggest that he is not sincere in that. I'm just saying that the effect of that on a vulnerable person, to hear a lecture about the dollars involved, must have been a very difficult one. It was certainly difficult for me to hear.
Most of us didn't know very much about ALS probably until the Sue Rodrigues case came along in this country. Mr Evans has the same disease that Sue Rodrigues had, and we know it to be a constantly progressive disease that gradually robs people of the ability to speak on their own behalf, to look after themselves.
If we value, truly value, the lives of those who are most vulnerable, those who are disabled, those who are very often unable because of their condition or their disease to speak for themselves, then surely we must be mindful of the despair, the conviction that people in that position get from us as legislators that they're unimportant and that they, quite frankly, may as well be dead. That is a conclusion that all too many people reach when they're in these situations, and we heard from people testifying in front of us about the number of their friends and colleagues who commit suicide rather than face that constant withdrawal of their ability to be able to look after themselves. Self-sufficiency is so important. We certainly in this country are aware of how difficult that is and where it takes us when we start talking about quality of life in a way that makes assumptions about the judgement people might make themselves about those qualities of life.
We heard people come in front of us talking about their nervousness about substitute decision-making and the kinds of consents under the Health Care Consent Act if in fact the Advocacy Act did not exist, and that was the worry that was expressed by people about the ability of others to make determinations that might affect not only the quality of their life but life itself for them.
We heard disabled people saying: "Are we in danger of being treated the way Tracey Latimer was treated? Are we in danger of having our lives seen as not being worthwhile or having any quality because of our inability to live the way the majority of society does?" That's a really big question for us. If we truly value the lives of individuals, we need to be very, very clear in our own minds that we have to do more than just say we value those lives. We have to give people the ability, the clear ability, to be able to speak for themselves or to speak through an advocate if they can't.
When we really look at the whole issue of withdrawing, what it means to people to withdraw the Advocacy Act and put nothing else in its place, let's listen again to what Dean La Bute said in Windsor, Dean La Bute of the Windsor Essex Community Advocacy Network for People with Physical Disabilities, a person without sight, a person who lost his sight in his early adult years. He said:
"We feel that Bill 19 turns a blind eye and a deaf ear to the plight of vulnerable people in Ontario. The fact remains that it absolutely seems to sweep aside the Advocacy Act and the components of that act, because from the point of view of vulnerable people, and in particular the physically disabled, we looked upon December 10, 1992, as a day of reckoning in that through the proclamation" -- and I would say that I don't think he meant the proclamation, I think he meant the vice-regal consent to the bill -- "of the Advocacy Act, vulnerable people in Ontario were given equal status, were provided with a level playing field with the rest of society.
"For far too long, vulnerable persons have been marginalized, ignored and have been looking from the outside in and knocking at the door to become equal partners, have equal status within society at large. In our opinion, the Advocacy Act opened that door and allowed us in. Bill 19 throws us back to the dark ages with the repeal of the Advocacy Act."
I would really urge the government members to understand that whatever your intentions are of putting something in place in the future, the damage that will be done to this community by the repeal of the Advocacy Act without something to replace it, without something that is guaranteed to them, will be very great.
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All through the discussions, we talked about this as being an issue of trust, and there's some truth to that. There is some truth to the fact that we ask every day vulnerable people to trust their caregivers, to trust their families and to trust us as legislators. Because they are unable to ensure their own rights themselves, they need to trust us.
Many of the government members and those who wanted to see the repeal of the Advocacy Act wanted it repealed because they felt that it destroyed trust between caregivers and family members and the vulnerable people. I would suggest to you that exactly the opposite is true. Most vulnerable people saw the Advocacy Act as the guarantee that in fact if someone breached trust with them, there would be some recourse, there would be some way to get back their own rights if those were violated.
It was not a question of seeing the Advocacy Act as a way to intervene between caregivers or intervene in a way in that trusting situation, it was to be the medium within which that trust could build because, if there were a breach of trust, there would be recourse. The real issue is for many vulnerable people without that recourse there, they would say, to quote Mrs Caplan, that all the fine words don't mean anything. The fine words are not going to repair the trust in legislators to ensure that we are guaranteeing people's rights of looking after themselves.
It's very important, I think, that we recognize the strides that were made while the Advocacy Act was in place, and they were quite considerable. The reason that the second part of our motion talks about the materials that were gathered and the information that was gathered and the programs that were prepared by the Advocacy Commission, even though Mr Tilson assures us that of course that would be there and would be sort of just regularly there and there's no need for a legislated provision for that, frankly, our lack of trust arises out of the repeal of the Employment Equity Act. That information also should have been there, having been collected.
So of course we think we need to have a legislated guarantee that this material will be there and can be built on and can in fact be seen as things that were accomplished by the Advocacy Commission during its time, that it doesn't get subsumed and withdrawn into some other milieu. This was done under this regime. This is what can be done under this regime, and that's why it's important for us to have that there.
The last issue is the three items that we suggest should be the role of an organization that does the advocacy role. The first issue is this cross-disability approach, and I would go back to what I said earlier about the fragmentation of advocacy. Yes, there has been advocacy out in communities, and, yes, that advocacy has in many cases led to a greatly improved life situation for many vulnerable adults, but that advocacy has been fragmented. It has not been coordinated. It has often been disability-related or disease-related as opposed to looking at the common issues that those who are vulnerable and disabled face across our community.
When we first started talking about long-term care in the changes that happened in the Long-Term Care Act, we found that there was real difficulty between the elderly, who gradually are becoming more and more disabled by virtue of age, and those who have been disabled by birth, in that in fact those two groups thought that they had different goals in life. We heard a lot in the early days of consultation around long-term care that those who had been disabled early in their lives, while they were still young, had a goal of increasing their independence -- that was a major goal -- whereas for many of the elderly getting gradually more infirm, their concern was maintaining the independence they had always had, to the extent that they could depending on their health, but having an assurance that help would be there as they required it in that gradual way.
One of the issues around cross-disability services is ensuring that we build the commonality of experience and that's extremely important because in that way, of course, since all of us will age and all of us need to regard ourselves as temporarily abled, if you like, that is where the common interest lies in protecting the vulnerability of those who become disabled. So while it may be difficult for those of us who are able-bodied to relate to someone who has been born with a degenerative disease like muscular dystrophy, or has been born with a disability caused by cerebral palsy, or has become disabled as a result of a car crash, what we have in common with those people is that the day will come, if we are fortunate enough to live that long, that some of our faculties also will desert us. So we are always acting in the best interests of all of the population when we act in the best interests of the most vulnerable.
Cross-disability means that we look at the things that are going to make for independence, no matter what the condition is; what is it that we need to do in order to ensure that there is safety, to ensure that there is independence for that group. That's why we think that's so important.
We've all talked about community development, education and training. Community development, though, is the aspect that's very important if we are going to rely very much upon the community in which we live, because community development means the development of the community of those who share the same disability. It means the development of the community in which those people live. It means the development of a sense of community between those of us who are able-bodied and those who are not. Community development has many nuances and it's very important.
Education and training means not just education and training for the professionals, it means education and training for the individuals who are going to be self-advocating as well as for those who are going to be advocating on behalf of those. And it means an ongoing education, so that as theories and differences in treatment and differences in daily living plans change, there is an ability to educate people about those changes as they go along.
The last issue is the one that it seems most difficult for people to understand, and that is the whole issue of systemic advocacy. It's very important, whatever is put in place of the Advocacy Commission, that we understand the issue of systemic advocacy; in other words, advocacy on behalf of the whole group of those who are vulnerable, how we do that within different circumstances. It's extremely important for us to see that as a role. I just urge the government to understand that all those things -- we've now met these people across the province who were able and willing to come forward and talk to us. We know that, consistently, consumers in the area were saying they needed advocacy and they needed it legislated and they needed to know it was going to be there for them and for their friends and for their colleagues.
I would urge you not to withdraw the Advocacy Act, not to repeal that act without putting something in its place. You may want a place holder that's a little less definite, but it should have those three elements involved in it because those are the most important elements identified to us by those most affected by the need for advocacy.
The last thing I would say is that we have an obligation, it seems to me, to see governments as being the ones that stand up for the rights of individuals. We're mandated, in a way, our governments under our Constitution, to ensure that every citizen in our province, every citizen in our country, enjoys the rights guaranteed under the charter. Several of the people who came in front of us talked about their concern around the charter, sections 7, 12 and 15 in particular, being meaningless to the vulnerable and the disabled unless they had some assurance that their rights were going to be maintained and protected and advocated on behalf of by the government of their province. That is a right we all ought to have, and it is within the power of the government to ensure it is enshrined in legislation in the province. At the very least, if you are going to repeal the Advocacy Act, which again I would remind you very much followed the recommendations of Father Sean O'Sullivan, which you have all said were wonderful, we need to have something put in its place so that the vulnerable people in this province will not see themselves as abandoned once again by government.
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The Chair: Mr Marchese, you may have a few words for Mr Parker and the committee.
Mr Marchese: Not for him necessarily --
Mr Tilson: I want to hear from him.
Mr Marchese: Just some comments, Mr Chair. Mr Klees made some remarks earlier on about what we might have said with respect to whether or not the government is sincere about advocacy. There's no doubt that members are sincere about advocacy; we understand that. But the intent versus the effect of what you're doing are different, and I suggest that the effect of what you're doing belies the intent. That is to say, your intent is that you like advocacy, but by not doing anything and by repealing it completely, the effect is to convince the public out there that you don't care about advocacy. You might have convinced some of the folks out there that you will have delivered something at the end of the day, but I'm not sure they believe that. I'm sceptical.
Certainly, based on what I heard, I'm not getting the sense that you are moving in the direction Father Sean O'Sullivan was talking about. In fact, you are removing yourself away from it, taking only those minimal parts of the report that spoke about the need for all of society to be able to assume the moral responsibility to advocate for everybody. While that is very nice and a wonderful ideal, in itself and by itself it cannot but fail. If government doesn't set itself a plan, for example, if by some miracle all individuals out there and all groups and all families somehow internalize this moral responsibility and thus eliminate all abuse and all wrong -- I'm not sure how it would work; I'm not sure it can. I don't mean we shouldn't be saying to everybody out there that everybody has a moral responsibility to do that; I think you should. But to take away what we recommended as the NDP government is to take all the tools people said we needed to get to it.
Everybody agrees with your government, Mr Klees, that we need to support individuals, need to encourage volunteers, need to support service deliverers, need to do all that. No one disagrees with that, and no one who came in front of our committee said anything to the contrary. Neither are we. What I'm saying and what the members of the public who came before this committee said is that that in itself is inadequate. You are returning to the old system that Father Sean O'Sullivan criticized as being completely inadequate.
We know you're sincere, but that sincerity is belied by your action of repealing the entire Advocacy Act.
Mr Parker talks about a different element in all of this. He said that many of you have not argued that money is the issue, because even if it were $18 million or $20 million or $30 million, that still would not be the issue. The issue, for Mr Parker, is efficacy. "Are they doing the job?" is the basic question you asked. Well, to be fair and clear, some of your members talked about money as the issue. You've raised another side of that particular issue and said, "Money is in itself not the issue, but rather whether it's effective."
A number of points emerge out of that. We never said the Advocacy Commission was the cure-all. No one has ever said that. No one in this government has said that, none of the deputants said that, Mr Reville didn't say that, no one I'm aware of said it is a cure-all -- no one. They did say it was an important response to what was missing out there for those who are vulnerable, that the commission was an adequate response. Father Sean O'Sullivan's report said it was an adequate response, and we agree with that.
Did we give the commission the time to prove how much more effective it could have been? No. You're repealing it before the commission had an opportunity to be effective. We argue that in the time it had, it's done a great deal. It devoted most of its energies, in a very rapid time frame, to hire a lot of rights advisers. A lot of people applied for that particular job, a lot of training went into that, and they did it quickly in spite of the short time frame they had.
To argue that you did not have the confidence that the legislation would do the job, in my view, is not proper because we didn't give it the time to prove to you or others that it could indeed be as effective as I believe it can be, as I believe it was in the short time it was in place.
It's not, in my view, a bad piece of legislation at all. Where do I take that advice from? How am I informed by this? I'm informed by the very public that came in front of this committee. You're informed differently; I understand that. If you're informed about this piece of legislation, the Advocacy Commission and the act and rights advisers, as being a bad piece of legislation by a few doctors -- not all -- who came in front of this committee, and if you're informed by some of the lawyers -- not all -- who came in front of this committee and said it was good to repeal the Advocacy Act, you're taking information from a group of people who do not, on the whole, represent the vast majority of vulnerable people whom all the groups I mentioned earlier represent.
We take our information from the consumers themselves and from the providers, and I mention just a brief list. There was a whole list, and I wish I'd kept the whole list in front of me: ARCH, the Toronto Mayor's Committee on Aging, A-WAY Express, Consumer/Survivor Business Council of Ontario, Dixon Hall Neighbourhood Centre and so on. There's a whole long list. I'm informed by them. If all of you are informed by the doctors and that's how you formulate your opinion about this piece of legislation as being bad, we've got a serious problem.
None of you has mentioned why it is that you think it's a bad piece of legislation. You said it's bureaucratic. Good God, is that sufficient? Some of you said it's too costly. Is that sufficient? Some of you mentioned it's intrusive. Intrusive? I'm not sure in what way. If by intrusive you mean giving people rights advice, based solely on what a rights adviser might say to an individual, "These are what your rights are," if that's intrusive, we've got a problem.
If you're talking about advocates and right of entry, to enter into a place where they have heard there is abuse, if that's intrusive, for a person to enter into an institution and say, "There's a problem here, we've got to solve it," then I say to you that we have incredible views about what's intrusive and incredible views about how we help vulnerable people.
These are the things you said were bad about the legislation: bureaucratic; another level of government, you said; too intrusive; and some of you said it's too costly. None of you has taken any of the opinions from any of the deputations that have come forth and said, "This is what the people said," none of you -- other than a few lawyers making a case that it's not good and many doctors who didn't like the notion of rights advice and advocacy in general. We heard that. But to be informed by that? I'm not sure you're on the right track.
I have confidence in the commission. I have confidence that at least the modest proposal we have presented is a fair one and reflects the views of most of the consumers and most of the consumer advocates who have come in front of this committee. If you reject that, the effect of rejecting that is to say you really don't care about advocacy. You might say you care all you want, but the effect of repealing it altogether is to say to the public that you don't give a damn. Trust me, that's the opinion of the public once you've done that.
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Here's what some of the people said about this whole issue of vulnerable people. This is the City of Toronto Committee on the Status of Women: "Vulnerable people are simply not able to exercise the rights that many of us take for granted." That's serious. We able-bodied people take for granted certain rights, but we cannot assume the same for those who are vulnerable. But that's what you're doing with this act. By repealing it, that's what you're doing. "Vulnerable people are simply not able to exercise the rights that many of us take for granted."
I want to refer you to another submission, made by Toby Druce, from Dixon Hall. I am informed by these submissions; if you are not informed by them, we have a problem. This is what he had to say about this whole issue of repeal of the Advocacy Act:
"The Advocacy Act was the first time the role of non-legal advocates was clearly spelled out in legislation. The act provided advocates with the tools they required to do the job." The act provided advocates the tools to do the job. "It also ensured the accountability of the tool users," something that my colleague mentioned with respect to her reading of the criteria that Father Sean O'Sullivan was talking about.
"The act established an independent body that was charged with delivering advocacy services province-wide" -- another criterion my colleague mentioned. "As an institution of the government, the Advocacy Commission maintained its accountability to the people of this province through their elected representatives. As an independent body governed by representatives from consumer groups, the commission maintained accountability to its clients," another criterion mentioned.
Remember, this is an important and unique aspect of what the commission was all about. Nine of its 13 members were people with disability or seniors. They weren't lawyers necessarily, they weren't doctors necessarily, they weren't professionals. They were themselves, many of them, consumers, people with disabilities and seniors -- nine out of 13. They had been nominated by seniors and people with disabilities and patients' rights activists, making them thereby very accountable to those communities.
That's why Mr La Bute said, "We feel that Bill 19 turns a blind eye and a deaf ear to the plight of the vulnerable people in Ontario," that the commission, he went on to, was a beacon of light, a source of light for them. This was their place to have a voice. It was the centre for all of them to finally be an inclusive part of what government needed to be a part of with respect to advocacy.
"In the absence of such a body," the person from Dixon Hall says, "there are no guarantees that people will have access to the information they require to make sound decisions."
"Accept that the advocacy system provides a net cost reduction to Ontario's taxpayers by avoiding costly legal actions or, more sadly, inquiries into fatal cases of abuse or neglect." That too is what my colleague spoke about earlier on in her remarks. Some of you think you're saving money by eliminating this commission, but you're not. This was a very preventive kind of action we were taking through the Advocacy Commission and rights advisers and advocates. We are saving money "by avoiding costly legal actions or, more sadly, inquiries into fatal cases of abuse or neglect." You're bringing us right back to the old system. You're not saving. You're saving in the short term but not in the long term.
"Accept any of these things and you must accept that the Advocacy Act and the resulting commission is the best, most accessible, most affordable, most accountable system ever created anywhere in the world." I didn't say that; these are the people in the field saying that.
"If you members of this committee," says he, "do not believe the vulnerable people of Ontario require an organized system of advocacy, then I encourage you to visit with any group in your constituency who deal regularly with children, with women, with seniors, parents, grandparents, sons, brothers, sisters and daughters. The documented cases of poor people in vulnerable positions being abused are legion. And the undocumented cases are infinite."
Mr Klees says if there are abuses, we have to go back to the ministries and say: "We've got to solve this. We hear there are abuses. We've known for years. Now go out and do the work and solve it." I'm not sure it's going to happen, Mr Klees. I'm just not sure that this wonderful sense of ideal is all of a sudden going to happen, that you could go and tell the ministries -- they've known this before -- "There are abuses out there. Now go and do it."
What are they going to do, Mr Klees? What are the ministries' deputies going to do with that information? That's why the government and the civil servants responded by having an Advocacy Act and a commission and advocates with right of access and rights advisers. That was the response to these abuses. You're now all of a sudden saying, go back to them and tell them: "This was bad legislation. Now go find a better one. Go fix it."
I hope that's going to work -- I know you're going to repeal this -- but I'm not sure it will work, and I'm not sure you're going in the right direction. We were moving forward. You're going backwards.
He says, from Dixon Hall again:
"To accept the myths that advocacy is bureaucratic, expensive, intrusive or destructive to families is to accept a lie. As political representatives, your task is to make decisions that are in the common good, not simply politically expedient. Ontarians need an organized, accountable, rational and affordable advocacy system. We have that in the Advocacy Commission, and to let the commission die would be an inexcusable affront to the people of this province."
You don't have to listen to them; you don't even have to listen to me. I'm sure you're not, some of you.
Mr Tilson: Every word, Mr Marchese.
Mr Marchese: But if you don't listen to those people who are in the field dealing with children, with seniors, people with disabilities, I'm not sure who you're listening to. You think you might have made a few good friends with the doctors by doing this, but the people who are rooted in the field dealing with these problems will find your act of repeal a very shameful act.
I can tell you this: Whatever you will bring to us, I can anticipate that it will be completely inadequate, based on the things I've heard you members say in this committee. You might surprise me; I hope you will, but I'm not convinced you will. If you go far beyond what I'm suggesting, I will praise you, but I'm not sure that will happen. If you can't even vote for this minimal proposition before you, I'm not sure what you're going to propose that can be adequate or satisfy the needs of those people who said you're doing the wrong thing.
I want to give you the case of a rights adviser who said something interesting. There were a number of case studies we've had here. She said:
"I went to see a senior citizen who had been declared incapable by a capacity assessor under the SDA. I explained the assessor's finding that he was not capable of managing his finances and informed him that unless he clearly voiced his objections, the public guardian and trustee would take control of managing his affairs. He was visibly upset and inquired on what basis the assessor had made that decision."
The rights adviser says:
"When I went over the assessment with him and pointed out the difference between his real assets and the responses he had given the assessor, he explained that he had been unwilling to disclose the truth about his financial responses to a stranger and had deliberately undervalued them in fear of what his individual motives were. He indicated clearly to me that he was quite capable of managing his financial situation and that he wished to continue managing his own affairs.
"In my experience, it's not uncommon for seniors to be reluctant to discuss the details of their financial affairs with others, particularly a stranger. A visit from a rights adviser protects a person when this happens."
This is a very typical example. You're taking all of that away and you're saying, and you comfortably have said: "The legislation is going to work. Families are empowered now and they will take care of them." I'm not sure what else you might have said, but you're giving families power back, and everything will be okay and you can go home now, it's quite all right. It's not all right.
These stories that the rights adviser have given in front of our committee -- and if anyone witnessing these wants more stories that the rights advisers have given us, we can provide them to the public, because I'm sure the government won't give them to you. But these are real cases we're talking about. That's why we need rights advisers and that's why we needed a commission that talks about a coordination of community development, training and education and talks about systemic advocacy.
It's a little proposal, as little as $3 million. It won't be as good as it was. It cannot ever be as good as it was; it will never be as effective as it was in its original purpose and intent and composition. But it's the least you can do to give those vulnerable people out there and those who represent vulnerable people -- not the doctors, not a few lawyers, but those who are actually working with the consumers and the vulnerable individuals. Those are the people you will let down if you don't accept this little proposal today.
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Mrs Caplan: I must say I was provoked by Mr Parker. I just want to say one thing to him. You won the election; we lost. People expect you to implement your plan. Our plan was very different from yours, but that's not what we're here debating today. What we're here debating today is the fact that you are the government and you have a responsibility (1) to do what you said you were going to do, and (2) to be a good government and legislate and tell people, at least today, what you're going to do.
The problem we have is that you're repealing something; you made a commitment during the campaign, but you're not even implementing your own plan. To sit here and to get into a partisan debate about what was said during the election campaign does nothing except provoke needless and ongoing debate and frustration.
What you did, what you said, was absolutely unbecoming, but more than that, I was proud to have you read into the record what we would have done. The fact that we don't have a chance to do it is academic. I accept the democratic will of society. What I don't accept, Mr Parker, is the fact that you guys said one thing in the campaign and you're not living up to those promises or those commitments. You suggested to people that you knew what you were doing. Clearly, you didn't. That's extremely unfortunate.
In other cases, I've been thrown out of this Legislature for using unparliamentary words like "lied." I will not use that word at this time because I don't think you were specific enough during the campaign so that anyone would think you lied to them on this issue. You told them you had a plan, that you were going to move to implement protections for vulnerable persons. You never told them you were going to go back to square one to start thinking about it all over again. If what you want to do with these hearings is prolong them by baiting us, be my guest.
Mr Michael Brown: I was a little interested in the teasing of the bears routine over there that Mr Parker presented to us. I would suggest to him he's exactly right. The commitment we made was to dismantle the Advocacy Commission, and the commitment we made was to move on legislation within 30 days. You're right. We're guilty; we didn't do it.
The point he seems to have missed is that the electorate made another choice. I think our commitment was a good one. If that wasn't your commitment -- and I thought it was; I thought there was quite a bit of similarity on this particular issue. Having sat with various members of your party back in 1992, I thought on this particular issue there was, while not total agreement, strong agreement on most items that the NDP was moving in the wrong direction.
There was one solid difference. We said that within 30 days we would move on legislation. We missed it. Hey, we didn't move on legislation -- guilty. But we weren't the government.
The commitment was that there needed to be legislation. I still believe there needs to be legislation. This is not going to work without some legislation. You can't sit at this committee, as we all did on Thursday afternoon and listen -- I'm sorry, I don't remember the person who came from Parkdale legal clinic. The power of her presentation to us, the emotion, tells you that this isn't just about words and legalities; it is about a sense that some people in this society are not being able to inform their caregivers of what it is they want and that they don't believe their wishes are going to be respected. If you don't understand that, you don't understand anything at all, and none of us should really be here.
We are all sort of amazed when you talk about your commitment to advocacy and your commitment to the underdog in our society, because we have not seen, since June 8, one iota of evidence that this government cares for anything but the richest and the strongest in society. You believe everybody is going to be better off if the élite is better off and somehow it trickles down and gets to everybody.
But what we're here today talking about is probably the least able to deal with any of these questions. Your government, which insists that if the rich and the powerful and the élite are better off, everybody else is -- you can understand the scepticism we have, the real scepticism and cynicism that you're going to do anything. I don't think you are. I think we're going to see some fancy words a couple of months from now; I think there's going to be zip-all happening. If you want to find us guilty of not keeping our election promises because we weren't elected, I'm guilty, but so what? It's your responsibility. You have the responsibility to govern and you have the responsibility to govern for somebody other than the top 10% in this province.
Mr Klees: I'd like to take a couple of minutes and address comments Mrs Boyd made earlier. With respect, I've come to highly regard Mrs Boyd, and I know that the legislation introduced by the previous government was introduced in an attitude of truly wanting to help the vulnerable in Ontario. I don't in any way impute any cynical motivation to anyone.
What I would like to do is clarify the record somewhat, and perhaps I should be doing this as a point of order, I'm not sure; I don't want to interfere with the process here. But I do think that for the purpose of the record, if I was perceived as lecturing Mr Evans at that time, I highly regret that and certainly am prepared to write a letter to Mr Evans to express that. I'd like to read into the record, however, what I did say at that time. It's interesting how we've been discussing this issue for a number of weeks now and the message seems to be the same.
I stated at that time to Mr Evans:
"It distresses me somewhat when I hear my friend Mr Marchese repeatedly make the statement in this committee that the government is setting aside advocacy and suggests that because we're not implementing an act, because we're repealing an act, we don't care and that advocacy is not important us. For the record, I want to state this again very clearly: We believe vulnerable people need assistance. However, we cannot afford $18 million at this time to provide the kind of bureaucratic structure that the previous government intended. In fact, in these discussions...we have heard even Mrs Boyd make the statement that there are some things with that previous act that don't work very well. I think what's important is that people like yourself have the strong assurance from our government that we care very much about advocacy, that we support it, that we want to find the most effective and cost-effective way of delivering that and ensuring you're supported."
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I think it's very important, and the reason I will be voting in support of repealing the Advocacy Act is that we do believe it's the right thing to do; we do believe there are more effective ways of delivering advocacy. While I haven't been around these facilities as long as Mrs Boyd and Mr Marchese, I hope I won't learn the art of imputing cynicism to the motives of another member who may disagree with me in terms of implementation of policy. I hope we can work together, and contrary to what Mr Marchese has said, that we will not disappoint the people in Ontario, that we will be able to announce that we have an effective alternative system in place that will provide the advocacy that is so much needed in this province.
Mrs Boyd: I am very glad that Mr Klees reminded us of what was said in Windsor. It might be very kind on his behalf to write to Mr Evans, because I think he would probably feel much more comfortable in his opinion of you as a legislator if you were to do that, because I think you're right, that he may have taken you the wrong way, and that would be unfortunate indeed.
I think that expressing a belief that we ought to be able to do this in a way that is effective and that we can expect to see something effective come forward from the government at some point in time is really stretching it a little for all those groups that have participated in the consultations the Minister of Citizenship has been carrying out. Those consultations have made it clear from the very beginning, as people sit down, that the government's notion of advocacy means no new money and no legislation. So that's the ground rule: no new money and no legislation.
Group after group which came in front of us as a committee had already participated in those consultations with the Ministry of Citizenship, consultations which took place after this bill was introduced into the Legislature. They were well aware that the government had made a promise that it would do things. They came in front of our committee saying very clearly, not that they impugned your motives -- although some did but that wasn't the gist of it -- they just do not believe, from their experience within the community, if there isn't a legislative authority and a legislated accountability, that they'll be able to do the job.
Certainly, when we talk about no new money at a time when the budgets of virtually every one of the organizations which came in front of us have been reduced substantially, to be able to do this kind of work takes money. It takes money to train people. It takes money to ensure that people are available 24 hours a day. It takes money to get the information out to the professionals so that they know what is available.
It takes money to supervise and make sure that the ethical ways of advocating are followed, because we know there can be unethical advocates; we all know of some in this province. We know places where advocates, rather than just presenting the information and following the wishes of the person, have in fact overpersuaded people in certain directions. That is one of the reasons why there is some concern that there be accountability in any kind of an advocacy system. That does cost money.
One of the issues we heard from some of the groups coming in front of us, particularly, I believe, the PUSH groups, was that they're very worried that they might be put into a situation where they're in competition with one another for a very small pot of money to begin with.
We have only just begun to get these various disability-related groups to look at cross-disability issues. One of the real concerns they have, and I think it's a very serious concern, is that if we start, first of all, saying to all of these groups, "Now it's your responsibility to advocate on behalf of your members," they will get into this situation of competing with one another for an ever-shrinking pot. That should concern us all, because I think that then adds to the fragmentation, means that it will be impossible for anything that the government brings forward to be satisfactory, to be anything but the target of criticism for one group or another. I don't think that's very fruitful.
Not in his last speech, but in his speech before, Mr Klees talked about needing to find some way to deal with abuse in institutions and in the family. We're certainly agreed on that. We need to find some way. I think maybe it does have a lot to do with not having been around for a while. You have a very touching faith in the ability of ministries to be able to do this. Let me just tell you that having been a Minister of Community and Social Services and been the recipient day after day of reports of abuse in institutions run by that ministry, and often finding myself the strongest advocate on behalf of the people in those institutions, I have less confidence than you do.
I think if we talk about what actual powers ministries have, particularly with groups to which they have divested services or with whom they have contracts, it is surprising how hard it is to ensure the safety of individuals living in that situation. I would say when it's not institutional, when it's out in the community, it's even harder. One of the real concerns, however much of an advocate, and I am, of long-term care moving people into and keeping people in the community as long as possible, the issue around the safety of people within the community, when they're deinstitutionalized or when they have not yet been institutionalized, is an extremely important one.
As with many of the other comments that we had, a lot of our evidence is going to come through the coroner's office, through inquests. One of the real issues, if you want to look at some of the cases -- and we've got the great big book of coroners' inquests tabled with this committee, which had to do with needing advocacy on behalf of vulnerable people, advocacy in the medical area, in the policing area, in many different areas. The summary we got was only in the health care area, but the full gist of those recommendations is quite remarkable.
Recommendations from coroners' juries are only put into place with the goodwill of ministries, and they're put in place to a greater or lesser extent, depending on the vigour with which the particular ministry, and indeed the particular government in power, sees that as happening. But even when governments act to the best of their ability, there's always another step.
Mr Klees, I think, believes very strongly that with strong government action and government inspection and then bringing it home into the professions where discipline on those kinds of issues lies, we ought to somehow be able to get a sequence of events that ensures safety. I would like to believe that too. We didn't get the magic formula during the time we were in government.
Let me talk about a case, the Christopher Robin case, which happened while the Liberals were in power, a terrible case, where there was widespread information about the inquest and about the inquest results.
What was the result? That case is still in front of the College of Physicians and Surgeons. No disciplinary action has been taken, and it's years and years, and those children have been dead for years and years. We were not effective in dealing with the safety of those children. Because it was such a celebrated case, it may have made it a little bit easier for parents and others to advocate on behalf of similar children in similar circumstances, but I can tell you, if you go to visit some of the homes for special care, which is what Christopher Robin was, and look at the way in which the rules of the Ministry of Health are interpreted and applied, it's very distressing.
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We had deputants come in front of us who talked about the difficulty the health professions seem to have of dealing with disabled people who come to them for assistance on things other than their disability, how the disability somehow gets in the way of other common medical problems, in fact the allegation that for disabled people it is not unusual for them or their substitute decision-maker to be asked about putting a do-not-resuscitate order on a file, even though the thing the person came for care about had nothing to do about the particular disability they had.
We all expressed concern about that. We all did, and we all believe that somehow there's something unethical about requesting that kind of thing in those circumstances. I hope that Mr Klees is right, that we'll be able to come to grips with that somehow, with the professional colleges. I hope he's right, but I have less confidence because of years and years of experience of seeing these kinds of things come forward.
I'm in the odd position of having been a community advocate in areas where there was abuse within the family, so I feel very strongly that we must not be naïve about the level and the kind of abuse that is experienced by people within their own families. We'd like to be, we'd all like to be, but the reality is very clearly that a lot of the source of illness, whether it's physical or mental, for a lot of people arises out of abuse within the family.
We have to be very clear when we talk about making sure that people are safe within their communities. It's very difficult, without some kind of legislation, some kind of authority, for anyone to advocate within the family in a family care situation when someone is being abused.
The other thing we seem to have forgotten is the direct comments we had from a couple of people who were talking on behalf of providers about the difficulty for health care providers themselves, and the conflict of interest they often feel when they're in situations where they believe there's something going on and yet they themselves are in a position of dependence upon the operation.
Let me quote again from Eve Gillingham, the Family and Service Provider Advisory Committee in Thunder Bay.
"You must also recognize that there is the potential for conflict of interest between what the family and vulnerable person or service provider and vulnerable person consider to be in the vulnerable person's best interests. In addition as service providers, we sometimes find that our organizational or professional goals are in conflict with our ability to successfully advocate on behalf of the vulnerable person. From my own experience, I know of health care professionals who have had their jobs threatened as a result of trying to advocate on behalf of a patient. Therefore, we believe it would be best to avoid any situation that may pose a conflict of interest."
I would say to you that my experience is similar. I know of health care professionals who have had their livelihood threatened when they have questioned whether or not the action being taken on behalf of a patient is in that patient's best interest. Very often those are people who are either home care providers, VON nurses, people who are looking after people within the community. Where they disagree with the treatment that has been advised, usually by a physician, or in some cases by the family themselves, they are in a very difficult position because their livelihood depends on being able to maintain their job.
These are ethical questions that legislation can't cure all in one fell swoop. The problem is we need a mechanism to know about them so that the various colleges can be informed that this is going on. It's that inability to get across the gap of being able to bring this to the attention of the group that can deal with it that we need advocates to be there for. It is important for us to recognize that in a case where someone feels they're in a conflict of interest; for example, a VON nurse who believes that the treatment, or lack of it in some cases, that has been put in a patient's file -- under the Advocacy Act, if they didn't feel that they could act on their own, there was someone to call, there was someone to intervene, there was someone to be there to act on behalf of the individual.
I think that sometimes those of us who are not engaged in the health care professions have beliefs about the ability of people, individuals working within those professions, to effect change themselves that in fact is not carried through in terms of the reality of the situation.
Should it be that way? Should we need an outside advocate? I think most of us would say we shouldn't. I think Father O'Sullivan would have said that we shouldn't need that, that that should be part of the oath people take when they're engaged in the health care profession, that in fact it should be part of the obligation we owe each other as family members or as community members. But the good father was not naïve enough to think that what should be is what is, and all of us who've been to university have, at some point or another, had to deal with the fact that the "ought" and the "is" are not always the same thing. So what ought to happen very often isn't what happens. That's why you have things like advocates, because we know that vision of care very often isn't the reality that's experienced by other people. Some of us know it more immediately than others. All of us have had the benefit now of sitting together and listening to very articulate, very sincere people, all of whom did not necessarily disagree with the government, who have said this is an element we need in order to ensure safety.
Just one last comment: Mr Klees said that I have said that the act as it was did not always do what it was intended to do. I think that's true of any piece of legislation and I really don't think any of us should sit here thinking that any piece of legislation is not capable of being improved. I think experience improves things. Our experience of how the Advocacy Act was put into place, our experience of the very active hostility to the thing and lack of acceptance by certain professional groups was something we hadn't anticipated. We, like Mr Klees, believed the professionals would understand that this is the law and this is what you do, not that there would be the kind of resistance that was described to us by Dr Singer, which I know disturbed the member and certainly disturbed me.
I think we need to be very, very clear as we do our work that, with the best will in the world, we need to find ways to give better assurance to those who are vulnerable that we take what they have said seriously, that we do not discount their experience, that we in fact hear them when they say, "All this is well and good, but we really need access to proactive, independent advocacy."
We heard it again and again. The only people who disagreed were the lawyers, who I think were caught in a bit of a bind because they did admit that rights advice was probably a necessary thing, given the charter, but that they didn't like the Advocacy Act because it intervened in a way that they didn't think was very successful; and the physicians themselves, who not only said there shouldn't be outside advocates, but who also warned us that we better not require physicians to do it, because they wouldn't, and that basically our hands were tied, that we really had to accept the fact that physicians always act in their patients' best interests and that's all we need to know.
What we really need to come to a conclusion about here is, given those very differing views of what the experience is like and what the interpretation of best interests might be, that we have a problem, and the problem isn't solved by repealing this act, by simply removing it. The problem could be solved by repealing the act, if that's the wish and the desire and the commitment of the government. But putting in that there will be something and having that have the force of law, having that be in legislation that you will replace this by something that has the same effect in terms of the positive effects, that indeed fulfils those goals and those objectives that Father O'Sullivan articulated so well in 1987.
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Mr Tilson: We've now been at this section for almost four hours, and I understand that, certainly because this issue, particularly to the New Democratic Party, has been a very sensitive issue. It was very important to them in their government and it continues to be important to them now, and I certainly respect them for that. At the risk of provoking them -- and I will try not to do that -- I would like to make a couple of final comments.
Certainly I will repeat that everyone in this room is concerned about the issue of advocacy, and I guess the question is, in the debate particularly between the Conservative and New Democratic parties, how that is going to be done. That debate continues. The Liberal Party seems to say, "We support the repeal of the Advocacy Commission but believe there should be a plan first." I believe that's their position. Mr Brown, of course, said, "How can you repeal something if you don't have something to replace it with?" But can you imagine what Mr Brown would be saying if we came forward with a plan indicating that we were going to consult? The minister did indicate that back in July. I'll just very briefly read a portion of Minister Mushinski's press release back in July 1995:
"This government is committed to the interests, dignity and autonomy of vulnerable people, but we think the Advocacy Act is a costly, complex, and overly bureaucratic approach to achieving this objective. We believe that the central role played by family members and volunteers in the lives of vulnerable people should be encouraged and supported. We will consult with families, volunteers, members of the disability and seniors' communities, the medical profession and service providers to develop a better way to support the interests of vulnerable people."
That was her undertaking at that time, and that undertaking continues. Although I'm not the parliamentary assistant for her ministry, I've been assured that is on the verge of being introduced.
To be fair to Mr Reville, who I suspect was one of the architects of the NDP legislation -- I don't know that but I suspect he was, knowing how he feels about that legislation -- he has come forward. If we had come forward with a plan, particularly as the Liberals had put forward, we wouldn't be able to have as an option Mr Reville's proposal. We haven't said that we're not going to support the Reville amendment; it's really the Marchese amendment, but that was his concept. We have said quite clearly, to the contrary, we will consider that concept. Hopefully, Mr Reville will continue to meet with us. We will also consider other approaches.
I think you'll find that we will have a plan, as the minister had undertaken not quite a year ago; it was July 1995. We undertook to consult with as many groups as possible. We're continuing to do that. We'll consult with people like Mr Reville. Mr Marchese wants to add his comments, and I'm sure the minister would be pleased to receive any communication from him as well.
I can only repeat with respect to the second amendment that Mr Marchese has put forward, which had to do with the destruction of material, or the request that the material not be destroyed, that the Advocacy Commission, as I understand it from the ministry staff, has never been incorporated, so that everything the Advocacy Commission owns, whether it be computers, whether it be equipment, whether it be pencils, whether it be lists, whether it be information, is the property of the ministry. As well as that, there is legislation that precludes the ministry from destroying that information. I am starting to repeat what I said before.
I only wanted to conclude by making a couple of comments in response to Mr Marchese and Ms Boyd, I believe, referring to the employment equity section. That amendment was put forward because, as I understand it, that legislation dealt with private information that had been accumulated by private groups. That's the reason why that was done. This is entirely different information. This is government information. We've said we're not going to destroy it and legislation precludes us from destroying it. I will be opposing your amendment, but notwithstanding that opposition, I can tell you that you will get your wish because we're precluded from destroying it anyway.
Mr Marchese: But you're opposing it? Sorry.
Mr Tilson: We're opposing the amendment as you've --
Mrs Boyd: Why?
Mr Tilson: Because you don't need it; it's redundant.
Mr Marchese: But why would you worry about it then?
Mr Tilson: It's already the property of the government anyway. By law, we're precluded from destroying it; we cannot destroy it. There are at least two pieces of legislation that I know of that say we can't do it, and we're not going to do it.
The Chair: Before we go to Mr Marchese, if I could have a moment, if we can deal with this without prolonged debate, Mrs Caplan has properly pointed out to me that this committee has not established a quitting time each day. The start times have been. Mrs Caplan has suggested at least for today that we stop at 5 o'clock. Is there any objection to going till 5 o'clock today?
Mr Tilson: If I have an undertaking that we're going to finish this amendment; the list is extending.
Mrs Boyd: Are you objecting to stopping at 5?
Mr Tilson: I believe that we are close to finishing the debate on this section. If we're going to go on into tomorrow -- I believe that normally the committees go till 6, but if there's unanimous consent that the debate on this topic is going to end relatively soon, I have no problem with agreeing to her request that it end at 5.
Mrs Caplan: No, no restriction.
The Chair: Perhaps we'll have to set that down, Mrs Caplan, and deal with Mr Marchese, please.
Mr Marchese: First, on the issue of the second part of my motion, with respect to whether the materials -- statistical information, results of community consultations and so on -- be destroyed, you pointed out that it will not be. I understand that. We don't want to argue about it. Once you've said that is the case, that's fine. That's all we need to know. But for you then to suggest that you will be voting against it simply worries not just the committee members but anybody else watching these proceedings. If you're not destroying it, then you have no problem supporting it. It shouldn't worry you to support a motion that, in effect, is going to happen anyway.
Mr Tilson: It's a meaningless amendment, with respect to you.
Mr Marchese: All right. But then humour us, Mr Parliamentary Assistant.
Mr Tilson: How would you like me to humour you?
The Chair: Excuse me. Mr Marchese has the floor.
Mr Marchese: If it's a meaningless amendment, but you're agreeing that the information will not be destroyed, then the least you could do is say, "To please Mr Marchese, because" --
Mr Tilson: He's a good guy?
Mr Marchese: -- "he's a good guy and not to worry him any further, we're just going to put up our little hand -- it'll only take a second -- and we'll agree with it because we're going to keep it anyway." Please don't abuse yourselves that much by voting against the amendment when you say you're not going to destroy the information.
Mr Tilson: As the debate continues, I'll see if I'll humour you. I'll consider it.
Mr Marchese: I'm so pleased with your magnanimity on that matter.
In respect to the first part of my motion, we're talking about whether or not you might have introduced a plan or not and what that means, and you responded to the Liberal member about all of that. My view has been the following: Had you brought a plan forward, that would have been very useful to us all. As you know, we have consulted -- every government has -- for the last 10, 15 years on this matter, and to further consult again on this particular aspect I think is a mistake. I know you want to consult further on that part; I think it's wrong.
Given that we've consulted for 15 years or so and given that the deputations before in the previous legislation that we introduced -- people talked about the Advocacy Commission and the Advocacy Act and rights advisers -- to consult them again simply because you've said, "We don't want that, we want to consult you about something else," is a problem because what you're in effect telling them is: "We don't agree with you. Here are some other suggestions, what do you think?" Now hopefully the public that you're consulting will say: "We agree. If that's the only thing we're going to get out of this government, we'll accept that."
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I believe it would have been a much cleaner process had you presented something in front of this committee that we critics would have been able to say: "That's fine. You're going to reject this, we'll deal with that and here are some suggestions we want to make with respect to your proposal." But to have nothing in place is a problem.
Yes, you might have been attacked for its inadequacy if it would have been inadequate, but that's something you would have to live with as a government. But not to allow us the opportunity to speak to something is a problem, and not just to us but the public. You would then have allowed them to speak not only to the other changes that you made to consent to treatment and substitute decision-making, but to that as well and all of their opinions on the matter would have been given to you at once as opposed to now consulting them again on this other part of it.
Frankly, I believe you made a mistake as a government in doing that and that you are prolonging the agony for all of us for yet another couple of months, all in the dark. What I urge you to do is to table your proposals to this committee again. Not to leave it unclear, not to allow us an opportunity to speak to it is a problem. I hope you'll have the courage to say, "All right, here's our proposal, we'll resubmit it for comment," and whether it's two days or three days or enough time to be able to give people an opportunity to speak to it, it matters not, but to have an opportunity to speak I think is important. I hope this committee will have the courage to recommend to the minister and the government and cabinet that that's something that's useful to do.
I'm a bit saddened that the members of this committee, having heard all of the deputations, have not been able to convince the Minister of Citizenship in particular that they should have taken a different position on this based on what they heard. It's happened in other governments where, based on the submissions we heard, the committee members then said to the minister and to our cabinet and caucus, "We need changes here," and you could do this, but when caucuses simply put up their hands to say, "No, we will repeal it as the minister and cabinet have suggested," is a problem and it's a mistake on your own autonomy as members in this committee, having heard evidence of cases of abuse, and having heard many submissions that have spoken to what the repeal of the Advocacy Act and the commission would do.
The Ontario March of Dimes -- I haven't quoted them. I want to quote them as well for the record, because what we give in this committee is not some ideological fantasy of New Democrats, it's based on what people tell us in the field. We don't invent these things because we want to please our own ideology as New Democrats. We present it because the public has made sufficient amount of strong opinion on this matter to have convinced us that we need something. The Ontario March of Dimes says the following:
"Independence, as we see it, does not simply mean the ability to perform physical activities; it encompasses an individual's ability to make decisions about all facets of his or her life, from the mundane to the extraordinary. We feel that certain aspects of this new legislation may limit individual rights and freedoms.
"The Ontario March of Dimes is primarily a service organization, assisting 10,000 people with physical disabilities in Ontario.... We are concerned about the effect of repealing the Advocacy Act and provisions of the Health Care Consent Act and Substitute Decisions Act which may make it easier for a person with a disability to be subjected to decisions beyond his or her control, or treatment he or she does not desire.
"The Advocacy Act, and by extension the Advocacy Commission, provided important resources to persons with disabilities. Together, the act and the commission -- the Advocacy Commission -- were designed to help vulnerable people understand their rights and express their wishes. They were also designed to promote the rights of vulnerable people and provide means to remedy situations -- means to remedy situations -- in which the lives of those people were at risk. With its repeal, rights advice and advocates will no longer be as readily available for vulnerable persons.
"Specifically, repeal of the Advocacy Act removes all references to rights advice and advisers. Such references are removed from the other legislation as well. For example, the requirement that individuals be advised of the right to refuse an assessment and the right to appeal an assessment, have been eliminated. It also eliminates the requirement that an individual be informed by the assessor that he or she has been found incapable. Individuals still have rights, but lose the guarantee that they will be informed of what those rights are."
I wanted to quote from yet another organization that I hadn't made reference to, or my colleague, with making reference to so many other people. But these are the voices of vulnerable people, and we are not the ones saying, "Please don't repeal it" because we're specifically attached because we, as a government, NDP government, put it together and introduced it as a piece of legislation. We're not telling you to do that because we're a proud people, as a form of government, in order to satisfy our own whims. We read from their submissions to tell you that they are telling you that you're doing the wrong thing.
I believe firmly that you have done the wrong thing with the repeal of this act. All I can hope is that you will have the courage, as I've stated earlier, that once your minister has a proposal to bring, you will bring it in front of this committee and allow us and the committee an opportunity to speak to it and that we will have, if nothing else, two or three days of discussion on that particular proposal. But in the meantime, I hope that some of the members will still have time and courage to say that what is before you as an amendment is a reasonable, modest proposal to satisfy all of the organizations that have come in front of this committee with the hope that somehow you've not completely disregarded them.
The Chair: We have no further persons on -- Mrs Boyd.
Mrs Boyd: Just fairly briefly, Mr Chair, one of the things that seems to have got lost in the discussion about this amendment is that we're talking about this act, the Advocacy Act, not being repealed until something else is in place. If the government doesn't like the suggestion about the specific thing that we're suggesting be put in place, they might consider at least saying that it won't be repealed. The repeal won't take place until they come forward with their plan and until it's been discussed by this committee and in fact has had some opportunity for people to comment on it.
The real issue for vulnerable people in this province is whether or not they trust the government to bring something forward. They don't want to be left vulnerable in the meantime. It's a very important issue for them. You know, I think when something has not existed and it hasn't been in place, it's never missed as much as it is once it has been in place. When people see something being taken away from them that they have learned to trust and learned to use, it's very, very difficult for them to have the kind of confidence that the government would like them to have that something else some time down the line will replace it and will meet those needs.
I guess the real issue is the abruptness of just repealing the act whenever this particular act comes into effect. Without having that in place is part of what is really exercising people. So I would urge, at the very least, as the government thinks about this, thinking about whether or not they might want to attempt some kind of friendly amendment that might meet some of the needs that have been identified by the Liberals and by us in terms of the assurance that something would replace the Advocacy Act before the Advocacy Act itself is completely gone.
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This will become even more urgent as we get into the issue of rights advice and how rights advice gets provided at different points in the Substitute Decisions Act and in the Health Care Consent Act. It is an issue that is particularly important in terms of -- frankly, the viability of those two acts is having people understand and know their rights at a time when those rights are at stake.
I would just say that since the gist of the motion is that the Advocacy Act not simply be gone and there be a hiatus, a vacuum for a period of time which will give rise to great apprehension on the part of the vulnerable in the province, that the government members might want to see whether there is some kind of a friendly amendment that could be done.
I'm very sorry, Mr Chair, since the Advocacy Act is under the Minister of Citizenship and we keep getting her quoted at us, that in fact her parliamentary assistant isn't here and there isn't some sense of responsibility from that quarter for the repeal of this act. I think that's very unfortunate because it puts a lot of pressure on our colleagues who are the parliamentary assistants for Health and for the AG's ministry. I think that's a shame because this part of the act was under the purview of the Minister of Citizenship, and I regret very much that her parliamentary assistant who participated in many of the discussions that we had with the public is not here and not able to talk with us about the possibility of at least a fail-safe for vulnerable people in the province should the Advocacy Act be repealed.
The Chair: Thank you, Mrs Boyd. Are there any other speakers? If not, we will proceed to the first question. If there are not, firstly, we are dealing with Mr Marchese's motion --
Mr Marchese: On a recorded vote, Mr Chair.
The Chair: Yes -- to amend section 1 by the addition of subsection (2). We have agreed as a committee to deal with the motion and vote on two parts, so we're only dealing with 1(2), the addition of that subsection.
Shall the amendment carry?
Ayes
Boyd, Michael Brown, Caplan, Marchese, Ramsay.
NAYS
DeFaria, Doyle, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: That portion is defeated.
We are now proceeding to the second part of the motion which calls for an amendment or an addition of subsection (3). I assume, Mr Marchese, we can call that subsection (2) since that would have been subsection (2). Correct?
Mr Marchese: I think that's correct. Is it?
The Chair: Yes. Again, shall that amendment carry?
Clerk of the Committee (Ms Donna Bryce): Recorded vote?
Mrs Boyd: Yes.
Ayes
Boyd, Michael Brown, Caplan, Marchese, Ramsay.
NAYS
DeFaria, Doyle, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: That second part of the motion is lost and that deals with the complete motion. If we may proceed then --
Interjections.
The Chair: Excuse me, we are now proceeding to the vote on section 1 which is unamended.
Shall section 1 be carried?
Mrs Boyd: Recorded vote, Mr Chair.
Ayes
Michael Brown, Caplan, DeFaria, Doyle, Guzzo, Johns, Klees, Leadston, Parker, Ramsay, Tilson.
NAYS
Boyd, Marchese.
The Chair: Section 1 carries. I assume, Mr Marchese, that we need not deal with the second motion you had in your package.
Mr Marchese: That's correct.
The Chair: We are now proceeding to section 2. Are there any comments, questions or amendments to section 2?
Mrs Helen Johns (Huron): May I have unanimous consent to move to schedule A to deal with the Health Care Consent Act?
The Chair: Is there unanimous consent to include schedule A with the consideration of section 2?
Mrs Boyd: No. Why?
Mrs Caplan: Why?
The Chair: Would you like to --
Mrs Johns: Because we were going to approve the Health Care Consent Act, and I thought we might want to go through the schedules first and have a look at the different subsections in the act, but it's really up to you.
Mrs Boyd: Part II --
Mrs Johns: I'd have to stand part II down and then go to schedule A. I guess I should have said it differently.
Mr Tilson: Part II deals with the Health Care Consent Act. That schedule she speaks of coincides with that part --
Mrs Caplan: So what you're saying is you want to deal with part II and then go to schedule A after?
Mrs Johns: No, I want to go to schedule A first and deal with schedule A, go through all of the motions and amendments we had to schedule A, come back and approve the Health Care Consent Act and then go on.
Mrs Caplan: I don't see any difficulty as long as the clerk will reorder the book that we have. The difficulty we have is that all of the motions are in an alternative order and it will take some time to put them out of order. If you want to stand down section 2 and move directly to part III, we could do that, and then reorder the amendments that are before us for tomorrow; that would be fine.
The Chair: Mrs Caplan, the amendments start on 74, but we need unanimous consent to proceed on that basis.
Mr Tilson: The intent of the request, Mrs Caplan, is that we deal with the Health Care Consent Act first, deal with anything to do with the Health Care Consent Act, then deal with the substitute decisions part of it.
Mrs Caplan: All I'm saying --
The Chair: Excuse me. Mrs Boyd.
Mrs Boyd: I would like to repeat what Mrs Caplan has said. All the material that we have, as ordered by the clerk of the committee, is in order with the Substitute Decisions Act first. It's all in that order and so it really is quite confusing all of a sudden, because we'll be dealing way at the end of our pile of amendments here. It wasn't the way it was ordered by the clerk. I understand entirely why you want to do it. I think we all kind of neglected to recognize -- obviously, the Clerk's office did -- that part II does tell you those health care consent things, because the way you've organized the bill, all of that is at the end of the bill.
All we're saying is, given that we're organized this way, it would probably be better if we went ahead and stood down part II, moved to part III, and did substitute decisions.
Mr Tilson: Could you give me a moment, Mr Chair. The staff, I think, were assuming you were going to deal with the Health Care Consent Act first, and now we're throwing them off --
Mrs Boyd: Should have looked at their materials.
Mr Tilson: -- if you can just give me two seconds to consult.
Mrs Caplan: If I could be helpful, I think what this would require is that everything from 3 to 73 would go to the end of the amendments listed. The last amendment that I have is --
Mr Tilson: Is that right, 3 to 73?
The Chair: The clerk advises me that is correct.
Mrs Caplan: That's correct. At the end of 203 is when we would start with number 3, so there's none in the middle that would have to be pulled out. Is that correct?
Mr Tilson: We agree with that.
Mrs Caplan: Okay. So we will just reorder and 3 would become 204 or something like that. It would not be too difficult. I have no objection to accommodating it.
Mr Marchese: I'm not sure whether it's helpful, but if they were prepared, Parliamentary Assistant, differently in terms of presentation, we can easily adjourn until tomorrow and have all that work organized in such a way that we could begin our work. If that's acceptable, that's fine too.
Clerk of the Committee: If I could clarify, if there is unanimous consent, what the committee would do is postpone the consideration of section 2, go to schedule A, go through all the amendments on the sections of the schedule, and then go back to section 2 and then continue through the bill, sections 3, 4 and 5 etc. All the amendments are in your book and they are in order. It's just a matter of going to page 74, which would be the first amendment to schedule A, and continuing from there, if there's consent.
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Mr Tilson: Why don't we turn to page 74 and proceed?
The Chair: We need unanimous consent because, in effect, you're dealing with schedule A, which is at the end. I believe the opposition has no objection. The third party? Is that a yes or a no?
Mrs Boyd: I'm not very happy about it because it certainly wasn't what we had expected, but I don't see any reason to object to it if that is more convenient for the government. I just wish it had been clearer all along that this was what you were going to do. You need to acknowledge that the lack of clarity was such that even the clerk did not pick up on it.
Mr Tilson: Fair point, Mrs Boyd. We have two ministries and we're trying to organize two ministries, and you're quite right that there should have been --
Mrs Boyd: It should have been three.
Mrs Caplan: I know that's very difficult to do, to get two ministries to organize each other so that you can figure out and let committee members know in sufficient time so that we can prepare ourselves and organize. It know it's tough to do that and we certainly want to help you out so that you don't look as incompetent as you are.
Mr Tilson: Thank you, Mrs Caplan. We need that help.
The Chair: As there is no objection, we will proceed. Mrs Johns, are you dealing with the matter at this stage?
Mrs Johns: Yes, Mr Chair.
The Chair: If you would proceed then.
Mrs Johns: I have a little bit of an opening statement to tell you about the Health Care Consent Act. The minister addressed this group on February 5 and he said they wanted to have some changes that would honour people's wishes with respect to treatment. We have kept the government out of family matters and strengthened the family role, and we have reinforced the positive role of the health care providers.
We have eliminated needless delays for treatment of incapable people and what we have included now is a mechanism to be used by health care practitioners and others in cases where there is concern that a substitute is not following the wishes of an incapable person. We've simplified the process of admission for incapable persons into long-term-care facilities. Another important tool we have looked at is part IV of Bill 19, where we have changed the personal care.
We believe we've created a better balance with the Health Care Consent Act, but we have made some substantial amendments as a result of what we have heard over the last three weeks. We have 81 amendments that we're going to be going through today and tomorrow in the Health Care Consent Act. Forty-three of those motions are just changing a word. We're doing that as a result of hearing specific nuances within the industry itself that we felt would make the act easier for people to understand. We have 31 technical motions and we have a small number of substantive motions which we hope clarify some of the very pressing issues we have heard over the last three weeks.
The first section, section 1 of the act, the Health Care Consent Act -- when I talk about "the act" I'm going to be talking about the Health Care Consent Act -- talks about the purpose of the act itself. I'm quite concerned about talking about the purpose until we've pounded through some of the amendments, because we have some alternate visions of what the purpose is and it will depend on how the amendments are processed. From my standpoint, I think it would be easier for us to hash through the purposes after we have dealt with the rest of the act.
My next question is, can I have consent to stand down section 1 of the Health Care Consent Act and move right into the definitions so that we then are sure what the purposes are because we have taken into effect the issues that people have raised in the amendments? I want to go right into the definitions.
Mrs Caplan: I have a question.
Mrs Johns: Sure.
Mrs Caplan: Could you explain for us what it means that you have "alternate visions"? Are you saying you have alternate visions?
Mrs Johns: No. Some of the amendments, some of the motions -- for example, all three parties have put a motion in on a specific issue. For example, rights advice is the one I can think of right away. For example, Mrs Boyd I think has changed the purpose clause at the front of the Health Care Consent Act to take into effect how she would like to see rights advice be outlined in the act. So I think it's important to go through the amendments first with respect to the other issues and then decide what the purposes of the act are.
Mrs Caplan: Fine, thank you.
Mrs Johns: Is that okay with you?
Mrs Caplan: I appreciate the clarification.
The Chair: The suggestion has been made by Mrs Johns that now that we are at schedule A, rather than dealing with items 74 to 82, being section 1, we go immediately to 83 or subsection 1(2) of schedule A. Is there unanimous consent?
Mrs Boyd: How many more changes in order are we going to have? This is getting absolutely ridiculous here. All of our work is organized in a sequential way and it has been organized that way by the clerk of the session. It strikes me that every time we do this it gets more confusing for people. It seems to me that you set the principles, and once you have the principles set then you follow along.
I didn't quite understand what Mrs Johns was trying to express, Mr Chair. Is she saying that if she gets her way in the body of the bill, she might be prepared to consider the principles differently? I don't think that makes much sense, so I don't understand why we aren't moving forward just in a sequential way with the act. I'd like a better explanation because I really don't understand why you would want to leap into the act and away from the purpose clause and the definitions, because it seems to me, if I may be so blunt, ass backwards.
Mrs Johns: I'm certainly prepared to go the way you would like. For example, some of the amendments to the purpose clause deal with definitions, so from that standpoint, if we don't have the definition yet established it's hard to deal with the motion. That's one of the issues we have. For example, your amendment on clauses 1(a) and (a.1) deals with in some ways how the rights advice will be done. I think we really need to have some discussions about that prior to that because you talk about advocates, for example, in that. That was really why I wanted to go through some of the definitions first.
The Chair: Is there unanimous consent? There is not, so we will proceed with schedule A. The first item I believe is that the third party wishes to make a general motion in regard to schedule A contained on page 74 of proposed amendments.
Mrs Boyd: I move that the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "personal assistance service" wherever that expression appears and substituting in each case "service relating to activities of daily living."
We had from many of the health care providers, I think more particularly those dealing with the elderly, a request that we use the language that was used in the long-term-care legislation and has been regularly used by those facilities rather than changing it to a "personal assistance" language, which is not the language they're used to. In particular, we had a very eloquent presentation from the Alzheimer Association of Ontario and 8.1 of their presentation was talking specifically about this. Let me just quote their introduction:
"We believe that it is appropriate to formally recognize daily routines as an important component of the health and wellbeing of an individual, and important to acknowledge that many otherwise incapable people are capable of expressing wishes about their daily routines even if they are not necessarily capable of consenting to an entire treatment and care plan. We do not believe that the way this is presented in Bill 19 entirely meets this objective.
"We endorse the intent to clarify the activities of daily living as separate and distinct from treatment." So do we, Mr Chair. We think that is appropriate. Alzheimer's Ontario goes on to say, "As well, we support the concept as set out in part IV of the Health Care Consent Act to provide practitioner access to the hierarchy of substitutes bound by the requirements of substitute consent when a person is incapable of consent to personal assistance services."
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But their recommendations, as they come out of that, because of the common parlance, because of the way in which they've become used to it -- they made two recommendations. One, that the legislation speak of "assistance with the activities of daily living" rather than "personal assistance services," and two, that the definition of "activities of daily living" be, as in the current regulations, "an activity that a person performs routinely and may include such activities as hygiene, dressing, ambulation, washing, grooming, elimination and positioning or other activities of daily living." The issue here, of course, is this need to give the greatest extent possible for individual decision-making under these circumstances and yet have an assurance that where a person may not be capable one day of making that decision, the service would still be rendered to them, whereas another day, if they are capable of deciding whether or not to participate, they would be able to do so.
I think it's that delicate knife edge that we've been talking about on these kinds of things, particularly for very vulnerable people that, when they are able to make decisions, they sometimes might make decisions that we might wish they didn't, but it still is their right to do that, whereas we do have some responsibilities in terms of activities of daily living to ensure that incapable persons are cared for. Certainly when we come to issues like elimination -- we haven't talked too much about elimination. We've talked more about nutrition and hydration, but the elimination issue, as we heard from the Clemens inquest results, in fact, is a very important issue. The decision as to when elimination is an activity of daily living, when it crosses over into treatment, is kind of an important one, and that issue around consent, which is the one that we're dealing with in this act, is important.
One would want to have the greatest autonomy possible and I think that "activities of daily living" talks about that in a very independent way. If you're talking about "personal assistance," it always puts the person in the position of being looked after, as opposed to "activities of daily living," which is all of us living our own lives to the extent possible.
So I think the language issue is -- and it is, as far as I can see, strictly a language issue, not an appreciable change or substantive change. I still think it's an important signal to us all, and it certainly would meet the needs of the care providers who are used to that language, as opposed to the personal assistance language.
Mrs Johns: I just wanted to say that I totally agree with what Mrs Boyd talks about and the ability of people to understand. We have heard from two different groups, the ONA, the Ontario Nurses' Association, and OANHSS, the Ontario Association of Non-Profit Homes and Services for Seniors also, about activities of living, and we proposed an amendment also, on page 86, with respect to that. It's schedule A, subsection 2(1) of the act and we're talking about personal assistance services.
What we did was, we outlined the personal assistance service as a routine of living, an activity of living. We did this just a little bit differently than Mrs Boyd because we believe that our approach -- we have taken in our amendment -- works better in the legislation than the one that Mrs Boyd is providing and that it is more grammatically correct. A global motion like this would lead to some confusion in the act.
The critical thing is we want to make sure that the definition of what is a personal assistance service works with the health practitioners. We've brought our definition to the ONA and OANHSS and asked them about that and they were happy with our motion. I think the thing that is a little bit different than ours, and I just want to bring it to your attention, Mrs Boyd, is, you call it "routine of daily living" and we call it "a routine activity of living". We have done that as a result of trying to conform with the two other acts, the Regulated Health Practitioners Act, RHPA, and the Long Term Care Act. But we did check that definition with the two groups to ensure that it didn't in any way cause a problem in understanding exactly what we were implying, and we were told it didn't. From our standpoint, we would prefer to see it in the definition section, so we will be opposing it and I will be moving it again on page 86.
Mr David Ramsay (Timiskaming): I appreciate Mrs Johns' explanation, but we will be supporting the amendment because I think it spells out in clear and simple language what the intent is. I think for people who have to deal with the act, rather than always having to refer back to the definitions, it's always there in front of you in very clear and concise language that I think is understandable for most people, what "activity of daily living" implies. So rather than having to define it elsewhere, why not put it out in clear and open language all through the act?
Mr Marchese: Just to make some comments on this, because I like the way my colleague Mrs Boyd explained this. The way it's stated, "services relating to activities of daily living", has quite an impact psychologically in terms of how people read it. It lends itself to the notion of giving people autonomy -- not that "personal assistance services" may not lead to the same thing -- but the language, in terms of how people read it, is different. As my other friend from the Liberal opposition said, you'd have to go to definitions to get an understanding of what you mean by "personal assistance services," in order to understand it.
So I'm listening to you saying that your language outlines what "personal assistance services" means, it works better, is more grammatically correct or cleaner, and I'm trying to understand why that is the case. What's more grammatically unclean about the language of "services relating to activities of daily living" versus the other language, which is more abstract? "Personal assistance services" is much more abstract; grammatically correct but very unclear about what it means. But if you read the other one in the act as one sees it, "services related to activities of daily living," people have a readier understanding of what we mean. Could you explain why the other one is more correct grammatically, and better wording?
Mrs Johns: I think from this standpoint, Mr Marchese, a global motion, as yours is, as the NDP recommendation is, we're afraid will be lost in the process. We also are concerned, when you hear "activities of daily living" versus "routine activities of living" that some specific things won't be done on a daily basis. For example, I may have in my chart, "bathe every second day" as opposed to daily living, so it could be the "daily" and "routine" have some issue also.
The Chair: Are there any further comments or questions in regard to the amendment? Shall the amendment carry? All those in favour? All those opposed? The amendment is lost.
We are now proceeding to schedule A, proposed amendments by the third party to clauses 1(a) and (a.1) of the act. Mrs Boyd.
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Mrs Boyd: I move that clause 1(a) the Health Care Consent Act, 1995, as set out in schedule A to the bill, be renumbered as clause 1(a.1) and that section 1 of the act be amended by adding the following clause:
"(a) to carry out the fundamental principles that,
"(i) the right of the individual to make his or her own decisions should be respected to the greatest extent possible,
"(ii) family members or, if there are no family members, friends and advocates, should be available to support individuals in making their own decisions, without the individuals having to give up their right to make their own decisions, and
"(iii) supportive family and friends should be the primary substitute decision-makers where it is necessary to make decisions on an individual's behalf;"
The Chair: Are there any comments or questions?
Mrs Caplan: We heard from several groups that it was important that the duality of Bill 19 be recognized in the preamble. We sought direction from legislative counsel as to how that could be achieved. The difficulty, of course, is that you're dealing with two separate pieces of legislation that are in Bill 19, which is really another omnibus bill, that will then be split into two separate pieces of legislation at the end of this committee process when the bills are enacted. So it's very difficult to get the kind of preamble that some of the groups requested that shows the duality of Bill 19, which deals with issues of guardianship under the Substitute Decisions Act as well as the right of individuals to be as independent for as long as possible to make their own decisions, and the aspects of the Consent to Treatment Act, which are to ensure that the people had given consent and were indeed able to have knowledge of their rights, because of that incapacity, to determine some way of knowing what their rights were.
There are two very distinct features of the legislation. While I'm not certain that this amendment goes the whole way in trying to do that in the legislation -- because when we finish with Bill 19 and it's reported back to the legislature, it's my understanding that you're going to end up with two separate acts -- I think I'd like to see a preamble in each of the acts that recognizes there is a companion piece of legislation out there that has another impact. We've been struggling to find a way and are continuing to have those discussions to see how that could happen. I think this is an okay first step for this piece of legislation, but it certainly doesn't accomplish the full purpose of wanting to make clear the two goals which are very distinct and very different in the two pieces of legislation.
That's been somewhat confusing for people who come before the committee as well. On one side you're dealing with capacity for the purpose of guardianship, which means all of your rights are taken away -- that's the Substitute Decisions Act, where you're deemed capable or incapable, and if you're incapable, its applications for guardianship -- and secondly, under that same piece of legislation, its powers of attorney and advance directives, and that's confusing to people. But in the health care legislation you can be deemed incapable for the purpose of a decision about care for you, which is a very different test than for statutory or full guardianship under the other legislation.
So I think that the amendment that's been put before us which deals with some fundamental principles is reasonable in that it does try to define some of those differences and place some principles in the legislation, but I have some concerns and would like to hear some discussion and debate as to whether or not there is a way that we can make clear the two different goals of the legislation that is before us, that is: to give people the opportunity to be as independent as possible, make decisions for themselves and to put in place a regime where they can be clear about what they would like to have happen in the future if their capacity is diminished; as well, to safeguard against the intrusive and unnecessary steps towards absolute guardianship which the substitute decisions legislation permits. That's why we have two different kinds of assessors: the evaluator under the health care consent legislation and the assessor under the substitute decision legislation.
Many people have been confused by the different concepts all stuffed together in Bill 19. It is a complex and confusing piece of legislation, and it would be helpful if we had some defining principles in it. Frankly, I'm comfortable with this, but I'm not sure it goes the whole way to solving the issue of confusion that people have addressed when they've come before the committee.
Mrs Boyd: We put this in largely because we think it reflects what we were hearing from many quarters, but probably most poignantly from Mr and Mrs Clemens, who came to talk to us about the problem with the Consent to Treatment Act and how it had affected their son in his tragic death.
Basically, it's important for people to understand that it is to be (a.1). In other words, the purpose clause starts, "The purposes of this act are" and (a) is "to provide rules with respect to consent to treatment that apply consistently in all settings."
The Clemenses, if you recall, in their recommendations said very clearly that they hope the current legislation would be retained with respect to the principles under which those decisions were made, so that the consistency was consistency according to principles. The wording we have used is very much the kind of wording they suggested.
I take it -- I'll do this right now -- that Mrs Johns is going to object, because of course, having taken the Advocacy Act out, this government wants the word "advocate" to disappear from everything, which tells everybody how difficult it is to have a whole lot of faith in the fact that you really believe in community advocacy. If you remember what the plea was from the Clemens family and from their advocates, the Reena Foundation, around the situation that happened with their son, what they were saying was, "We have to have the option of having somebody available who knows a person, who can advocate on their behalf, who doesn't necessarily come under the rubric of family member or friend."
Care providers very often would not describe themselves as friends of their clients; in fact, many of our professions really train people to avoid that kind of definition when they're in a care provision relationship. I've spoken to enough social work classes to know that the boundary between how I regard you as a friend and how I regard you as my professional client is a very important one. We were hearing that had the people from the Reena Foundation, the advocates on behalf of Mr Clemens Jr who were supporting him in his independent living, had some standing at the hospital, and had someone at the hospital been required by principle to talk to them about what this person was like and what it meant when he was refusing consent in those circumstances, his life might have been saved.
If you are all telling us that "advocate" is not a bad word, that there have always been advocates out there and there always will be, and that you're supportive of advocacy and in fact intend to bring forward a program that will provide advocates, then by taking the word out, especially in the principle clause here, you're throwing into question what those intentions really mean. It means you are systematically removing the possibility for advocates to have any standing in any kind of situation, however important it is.
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I must tell you, I feel very strongly that you are going to deeply regret not having some standing for advocates under this health consent act, particularly given your very strongly stated position that advocacy is important and that advocacy will continue to exist and that you want to support those groups advocating on behalf of vulnerable people.
I would urge you very strongly that a lot of the fear we heard on the part of vulnerable people about people exercising substitute decision-making was that they were having a hard time believing they were really going to be protected.
Those principles are an important way to protect them, stating very clearly that the individual has the right to make decisions and that that must be respected to the greatest extent possible, that it's a binding requirement on any health care professional at the time of that whole issue around consent to treatment -- that it's binding on professionals. This is where legislation becomes really important. If we don't have that in there as a principle, what will happen? You may claim that the other sections will take care of that. The people who appeared before us, including the Clemenses, did not believe that. They wanted you to know that they did not understand why you weren't including this. In their case they particularly didn't understand why you weren't granting some standing at this point to people who could advocate on behalf of those under their care.
The Chair: Mrs Caplan?
Mrs Caplan: Perhaps I'd like to speak after the parliamentary assistant. If it's true that the government has a concern because the amendment uses the word "advocate," I'd like to hear that. I'd like to hear whether they are comfortable with this amendment and then speak, Mr Chair.
Mr Marchese: I don't mind speaking now and then waiting to speak again after the parliamentary assistant speaks.
The Chair: It seems to be the habit here.
Mr Marchese: The case my colleague makes is a very reasonable one, and it's not in contradiction to whatever you have already done with respect to the repeal of the Advocacy Act. In fact, it's quite consistent with all the concerns you've already stated about your desire to support advocates out there in the field, whether they be volunteers, individuals, family members or institutions. This is not governmental, institutional intrusion being proposed here through this amendment. If for some reason you're frightened that the word "advocate" is there and that alerts you to the danger that you shouldn't support it, it shouldn't, because it's quite the contrary.
I hope the members are dealing with them in that way as you reflect on the motions, and don't just object because we're proposing them and that you as the government have a duty to oppose them. I would urge you not to do that. You see, (i) reasonably says "the right of the individual to make his or her own decisions should be respected to the greatest extent possible." It's not a frightening thought. It doesn't contradict any Conservative principles in any way. It has no political principles, in fact. It just says, "the right of the individual to make his or her own decisions should be respected to the greatest extent possible." That's a reasonable principle that I think you would support.
The second one says that family members or, in their absence, if there are no family members, "friends and advocates" -- which again is consistent with all the things you have all talked about; Mr Klees and Mr Tilson, you have mentioned this -- "should be available to support individuals in making their own decisions." It allows what is out there in the community to support an individual in the event there is a problem. Mrs Boyd mentioned the Clemens case, and the Reena Foundation did come before us and say, "We would have liked to have been there and been consulted because we think we could have avoided that particular problem." Again, very reasonable. Why you might object it would be of interest to me to hear.
And (iii) is "supportive family and friends should be the primary substitute decision-makers where it is necessary to make decisions on an individual's behalf." Reasonable. I guess I'm just waiting for Mrs Johns's explanation of why they may not be able to support it, or Mr Tilson's, or both.
The Chair: Is Mrs Johns deferring to Mr Tilson?
Mr Tilson: I just have a question to the proposer of the amendment. If this amendment were passed and there was an emergency situation, would not this create a problem?
Mrs Caplan: It shouldn't.
Mr Tilson: Except that (a)(ii) says "should be available." If you've got an emergency --
Mrs Caplan: You give an emergency override in the legislation. The legislation says very clearly that if there's an emergency, treatment can be given and there's no liability.
Mr Tilson: You're absolutely right, and that's the purpose of my question, and I agree that this a purpose section. However, would that not create some confusion, particularly for a doctor who has to perform something in the case of an emergency when he or she sees the words "should be available"? You're right, but it could create some sort of conflict with the emergency section you referred to. It's a question to either Ms Boyd or Mr Marchese.
Mrs Boyd: I would be more than happy to change the wording of that amendment to "should be able to be present." The problem is whether or not people are able to be present, and that is what the Clemenses were saying to us, that the representatives from the Reena Foundation had no standing. I understand what you're saying: "If you're saying they should be present, are we going to get some doctor somewhere saying, `I can't treat because this person isn't available'?" All we're saying is that they should be able to be there to support the person.
Mr Tilson: Doesn't the emergency section say that?
Mr Marchese: Say this?
Mrs Boyd: No. It doesn't give standing to anybody.
Mr Tilson: No, I didn't mean that. I meant that in an emergency situation, a doctor has to do something. The doctor, as I understand -- I can't recall the section -- has to seek out --
Mrs Boyd: No. It's an override.
Mrs Caplan: It's an override. In an emergency, the doctors can treat free from liability. It overrides everything. As I understand this clause as a principle up front, it doesn't override. In fact, the emergency clause would override it.
Mr Tilson: That's the question I'm asking. Will this create a conflict with that section?
Mrs Caplan: Well, I --
The Chair: Excuse me. That question, I thought, was asked of the third party, and I believe they've answered. We haven't heard Mrs Johns. You've been asked a question, Mrs Johns.
Mr Marchese: Before she does, Mr Chair --
The Chair: This question was from way back. This was a question asked by Mrs Caplan some time ago about the government position.
Mrs Johns: From our standpoint, we believe this purpose clause is somewhat identified in our purpose clause. If you look at (i) and (ii) in the NDP amendment, the first talks about "the rights of the individual," and the second says "give up their right to make their own decisions." We're talking about the autonomy of a person to make their own decisions, and we outline that in section (c) of our purpose section: "to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons who are to receive personal assistance services." We believe we talk about that. We believe --
Mr Marchese: Could you give me a page number? Sorry to interrupt the flow.
Mrs Johns: Sure. I'm always talking about the Health Care Consent Act. I'm talking about clause 1(c), page 63, the section in the act "to enhance the autonomy of persons for whom treatment is proposed, persons for whom admission to a care facility is proposed and persons," and then we have an amendment here, "who are to receive personal assistance services." We're talking about the autonomy of the individual also, and we believe that's very important. I know Mrs Boyd and I have agreed on that all the way along.
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What we have the problem with is that in section 18 there's a clear list of who can make decisions and there's a priority, and we don't want to have that part in any way confused. For example, these people will be substitute decision-makers if they fall into paragraph 3 or they could be in 2, a power of attorney for personal care, if they are assisting in specific ways.
As Mrs Caplan explained earlier about the globalness of getting a purpose statement that brings into effect everything, we find this will cause problems because it doesn't really say they have to have a power of attorney, it doesn't say they have to be the first person on the list for the substitute decision-maker. The outline of this could lead to more uncertainty about what the act is proposing than what we have in our purpose clause.
Mrs Caplan: That explanation was very helpful. The problem I have with the explanation is that it isn't clear and it isn't put into a position in the bill which allows a principle to be defined. You do talk about the autonomy of the person, but I'm not sure that's understood to mean the things your government has been saying.
Over and over again we have heard that you believe that the individual, the friends and the family should be enhanced and supported, and I think your hierarchy is really clear. I don't think a principle that says the individual's right to make decisions "should be respected to the greatest extent possible" -- I don't think that's anywhere here in a way as clear as that in the form of a principle. You may have it in a section somewhere in the legislation, but one of the things we heard from people presenting to the committee was that you hadn't set out at the beginning of the legislation the principles that govern the legislation.
I said earlier that the difficulty with that is that there are different, conflicting principles at work in Bill 19. However, there are aspects within the Health Care Consent Act that could be governed by these principles, and the substitute consent legislation would have and could have a founding principle.
Certainly, we don't want anything that's going to create confusion in the legislation. I don't share Mr Tilson's concern about the message to a provider, because you've clarified the emergency section of the legislation now with the word "apparent." My own view, and I've said it before, is that the tragedy of the Clemenses should never have occurred. To have anyone hide behind the previous legislation I thought was appalling, and I think the finding of the inquest was very clear on that. That doesn't mean we can't improve things to make sure that doesn't happen again. I think the change you've made to the emergency clause would help, but not help enough in that kind of situation.
A suggestion that says the founding principle is the right of people to make their own decisions to the greatest extent possible, as well as having friends and -- I think the word "advocate" is appropriate, since we have all agreed that there is advocacy in Ontario today. It may be fragmented, it may be provided by numerous and different organizations; they are well respected in their own communities and sometimes seen as a pain in the neck, frankly, when they come in to advocate on behalf of a vulnerable person. But that's their role. They're supposed to challenge the establishment that wants to impose its will on the vulnerable in society. Those kinds of tensions are good and appropriate.
Having something in the legislation that defines that principle is good. The difficulty, Mrs Johns, is that we've been trying to find a way to do that which wouldn't create any confusion, and I haven't been able to find the words that will do it. I don't know whether this will; maybe some parts of it will. If you have a problem with (ii), maybe we could take that out and just leave (iii), deal with (i) and (iii).
I'd like to know, could you accept any part of this to make that principle clear? If you can't have all three, perhaps we could have a vote on them individually to see what, if anything, this government will accept to ground this legislation in some principles around protection of individual rights and asserting that family, friends and those who advocate in the community do have some status, because right now we know this is a problem.
Mrs Johns: Can I have a point of clarification at this particular moment?
The Chair: It's a question?
Mrs Johns: No, it's just clarification. There were some questions. In (c)(iii), we talk about the best interests, we talk about the wishes.
Mrs Caplan: It would be helpful if you'd mention the page number.
Mrs Johns: I'm sorry, I don't have the same thing. Page 63, subclause (c)(iii), "requiring that wishes with respect to treatment," so we talk about that. In 1(e), we talk about the "significant role" of the family. The issues you were talking about I believe are laid out in our purpose clause.
Mr Marchese: She's finished, Mr Chair?
The Chair: Thank you, Mrs Johns. Mr Marchese, at long last.
Mr Marchese: To argue along the same lines as Mrs Caplan was arguing, (i) is just a general principle. It says, "the right of the individual to make his or her own decisions should be respected to the greatest extent possible." It's a right that people have spoken to, all of them, when they came in front of this committee. You make reference to different parts of the purposes of the act which connect to this but are really quite different. The language as we state it and as you refer to is rather different. You are convinced that your reference to (c)(iii) says the same thing. It's not quite the same, but I know you've convinced yourself that it is so. I thought your real objection was to (ii), which Mr Tilson was speaking to, the whole concern around "should."
Mr Tilson: No. With respect, Mr Chair.
The Chair: Is that a question, Mr Marchese?
Mr Marchese: Yes. I'd like to hear whether that's his whole concern: "should."
Mr Tilson: If you look at 1(c) and 1(e), I believe that solves your concerns with this amendment. I was specific about the wording in (a)(ii), but the overall amendment you're presenting, in my view -- I don't want to step on Mrs Johns's shoes, but it just seems to me that your amendment is more restrictive. One of the complaints from the care provider community was that the previous legislation was too confusing, was too restrictive.
Mr Marchese: Mr Tilson, I thought you were clarifying my point around the word "should," and now you're making a different argument. You can speak afterwards. I didn't want to lose my place on the list.
Mr Tilson: I don't want you to lose your train of thought.
Mr Marchese: Thank you. I thought you were going to clarify my point, but you added (e) as an argument. It says "to ensure a significant role for supportive family members," but (ii) speaks about "family members or, if there are no family members, friends and advocates." Our (ii) is quite different from your 1(e), which only speaks to ensuring a significant role for supportive family members. Our (ii) speaks about where there are no family members, to give standing to friends and advocates. I really thought your concern was around "should," and I wondered whether the civil servants had concerns around that. I know through Ms Johns they talked about whether that confuses its relationship to ranking.
Mrs Johns: That's part of the issue too. I don't disagree with this personally.
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Mr Marchese: Could I just get a civil servant for an opinion? I want an opinion from them with respect to whether it affects ranking. Is that why you think (ii) is a problem?
Ms Halyna Perun: The issue around highlighting family members, friends and advocates, friends particularly -- when you look at the ranking, a friend can get involved under the Health Care Consent Act where that friend is appointed as a board-appointed representative or becomes a guardian or is an attorney under a power of attorney for personal care, or that friend is a partner. That is the way a friend would become involved in the Health Care Consent Act.
Mrs Boyd: Mr Chair --
The Chair: Excuse me. First, could you identify yourself for Hansard.
Ms Perun: I'm sorry. Halyna Perun.
The Chair: Now we have a question. Are you yielding the floor, Mr Marchese?
Mr Marchese: Absolument.
The Chair: Is this temporary or permanent?
Mr Marchese: Completely. Mrs Boyd will --
Mrs Boyd: First of all, the ranking has nothing to do with this particular thing. This is an amendment under clause 1(a) and it would become clause 1(a.1). This is not a question of substitute decision-making. That's where the ranking applies.
What this is designed to do, what particularly (ii) is designed to do, is to ensure it's given if someone needs some support from family if they're available, and if they're not available from friends or advocates, in order to make their own decision. That was the issue.
I would just remind you that Mr and Mrs Clemens presented it to us as a recommendation, but it is in fact the recommendation of the inquest jury. It was based on a circumstance where the people who were available and able to assist Lonnie Clemens in making a decision were not given any kind of standing, were not able to do that. The purpose of this is to ensure that there will be support to people to make their own decisions where they are being told they are capable to do so.
I agree with Mr Tilson that the language here, "should be available" -- I can just see a medical professional saying, "Aha, there's no family, friends, advocate available; therefore, we won't support this person in making his own decision." That's how silly this gets. What this is saying is that they should be able to be present. They were not given any kind of standing or any ability to help him with his decision-making, and there was a lot of testimony around this at that inquest.
I would just suggest to you that this in no way has to do with substitute decision-making. This is strictly around the person when they're able to make their own decision and being able to have support to make their own decision.
Mrs Caplan: I'm not going to belabour the point. I would point out to the government the actual wording from the inquest. You said you were going to pay attention to the findings of that inquest, not as it related to the specific case but as it might relate to this legislation, and that you were willing to make changes that would implement the findings of this inquest which had direct bearing on Bill 19.
They said this, recommendation 6: "It is recommended that in drafting new legislation, there should be a genuine attempt to use plain language." That's one point. Anybody reading this may see it as an improvement over some previous legislation, but frankly, it's still very confusing language, and if there is an opportunity to make it clearer and plainer, we should do that.
However, the most important one as it relates to the amendment before us is recommendation 22 of the inquest. They say:
"It is recommended that any changes to health care consent legislation retain the following principles:
"The respect for the right of an individual to make their own decisions to the greatest extent possible.
"The support from family, or where there is no family, friends and advocates, should be available to assist people in making their own decisions without having to give up their right to make decisions.
"The supportive family and friends should be the primary substitute decision-makers where this is necessary."
This is the recommendation of the inquest jury. What I've said to you is that I don't want to see anything put into the legislation that would confuse matters, and I don't believe this would interfere with your hierarchy which would later clarify this principle. If this is put into the legislation in a way that is principle only, it would do two things: It would give plain language to the words "autonomy of the individual," and it would clarify your desire to see the supremacy of family and friends and volunteers, to use your language.
If you could find a way that would accommodate the recommendations of this inquest and give you some principles and clear language, I think you would be doing what you said you would do when you said you would respond to the findings of this inquest. It's that simple. Nobody wants to see anything confused, nobody wants to see it complicated. But it is reasonable to find a way, and if these are not the words, let us know where you're prepared to clarify the language and put in place those principles as recommended by this inquest.
Mrs Johns: I want to read to you what the Ministry of Health said to both recommendations 6 and 22 of the inquest which you just quoted. Recommendation 6 said that in drafting, "there should be a genuine attempt to use plain language." We talked about that the other day: How plain can plain language be when we're doing legislation? We heard from a number of people along the line who said ours is substantially better than in the past, and the ministry has said the HCCA has less complex language, structure and process than the Consent to Treatment Act.
With respect to recommendation 22 -- this is a draft, by the way. We're talking about the fact that any changes to the health care consent legislation retain the three principles you outlined, and the ministry suggested that these principles are set out in front of the purpose section, section 1 of the HCCA, which we have been talking about on page 63.
It says: "In addition, subsection 18(1) lists the possible substitute decision-makers. Clearly, if a person has not provided in advance for someone else to be his or her SDM, ie, in a power of attorney for personal care, family members will be the primary substitute decision-maker. The PGT is substitute decision-maker of last resort only."
Mrs Caplan: I really appreciate the clarification. It would be nice, however, if the minister and the parliamentary assistant would be open to hearing recommendations of juries that come from coroners' inquests and not just go to the defence -- of course the ministry officials are going to defend their legislation.
The Chair: Excuse me, Mrs Caplan. You don't have the floor. I don't think that's fair.
Mrs Caplan: I thought I did.
The Chair: No. At no time did you have the floor.
Mrs Caplan: I'm aggravated now.
The Chair: Mrs Johns has it, and we'll go now to Mrs Boyd. I'm sorry I aggravate you.
Mrs Boyd: I'm not aggravated. I just think this is a really difficult issue. It seems to be hard to get across. We're not talking about substitute decision-making here. We're talking about some provision in the principles that would allow family, friends or advocates, whoever's available to help an individual who can make their decision themselves, to be there to do that.
Let me be very clear. One of the issues raised in this particular inquest was the sense that somehow the health care professionals seemed to see the parents and the Reena Foundation as trying to influence in an inappropriate way the decision-making of this person who'd been deemed to be capable, or at least presumed to be capable pending any further action.
The issue here is that if you're very clear that individuals ought to have as much right as possible, some individuals, particularly developmentally delayed individuals, need some support to be able to exercise that decision-making. The issue here is that you're making the assumption that of course any health care professional would allow that to happen. But the problem is that health care professionals have reason to be concerned about whether undue influence is being exercised. At least it's the only explanation we could come up with for why they wouldn't have allowed some intervention on the part of supportive family and friends. It's a real conundrum.
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This is before you get to clause (c). Certainly it has nothing to do with (e), which is where substitute decisions are. It has nothing do with (e) because we're not talking about that. Your (e) is fine, and in (c) where you're talking about allowing people to appeal to a tribunal, they've already been found incapable. We're not talking about people who've been found incapable; we're talking about people who are capable. Are they entitled to have support from family, friends and advocates in making their own decision?
That is our issue. You've jumped to incapacity. We're talking about capacity. We're talking about, Where they're thought to be capable, do they have the right to have the support of family and friends to help them make that decisions? We might think, just off the top of our heads, that that is a foregone conclusion. The reality is that the inquest jury wouldn't have made that recommendation if they thought it were.
Mr Marchese: Mr Chair?
The Chair: No, Mrs Caplan is next, Mr Marchese.
Mrs Caplan: I will be very brief. It's not helpful to just read into the record the defence of what the ministry has written, because that's not the point being made. The point being made is that you're not dealing with those who are incompetent or who have been found to be unable to make decisions for themselves. That was the finding of this jury, whether it's an older person or a developmentally delayed person or someone who has some kind of challenge or handicap which will make it more difficult for them to make a decision.
Where they're found capable, this is a signal that says the legislation is about supporting capable people. This is before you get into the hierarchy. It's a principle of the legislation that supports the individual who is capable or who varies in and out of incapacity, during the times when they're capable, to have the support of those around them to make a decision.
Part of the problem in the Clemens inquest was that, for whatever reason -- and that I think ultimately will be challenged in the courts -- the doctors determined he was capable. Even though he had a history of incapacity, they determined he was capable, and the family and the friends and so forth were not encouraged to help with another decision. Unfortunately, it wasn't until it was too late that he was found to be incapable and then the treatment was rendered, even though the parent, the advocates and everyone said, "He's not thinking clearly, even though you may find him capable."
This is the notion of assistance to a capable person before a finding of incapacity. That's the purpose of this. I explained at the outset how difficult that is, because by law it's black and white. If you're capable, you're on your own; you don't need any help or assistance and you can make your own decisions. I see Halyna shaking her head that I'm right. I understand that difficulty.
But this is a signal that says even people who may be deemed capable may need some support. I'm not sure it's exactly the right wording, but the intent of this is that while you ultimately have to listen to the capable person, there should be some assistance permitted and encouraged to support a person who is not deemed incapable. It's to encourage that. As I say, I don't know if this does it, but I think it's a good principle to have in the legislation that encourages that kind of communication and greater understanding when you have someone who, while they are capable, may have some handicap that interferes with their clarity, is the word I'm going to use. That's the last I have to say.
Mrs Johns: Can I make a point of clarification?
The Chair: No, let's go on to Mr Marchese. The questions and points of clarification end up being debates. We've got to use them properly, otherwise we're really hurting the people on the list who wish to speak to the matter.
Mr Marchese: Quite clearly, the arguments have been made. There's nothing much to add. I just want to say a few things.
First, these recommendations come from an inquest that we all agree was a serious one, and we are trying to find language that deals with things like that. We're trying to be helpful. We're not trying to argue here on political positioning at all. I'm not quite sure whether the government members want some time to reflect on this. If they do, we'd be very happy to stand this matter down so you can reflect on what has been said. If you think that's useful, we don't mind working with you to find language that might accommodate your concerns and accommodate the concerns we've been trying to speak to. Is it helpful for us to stand this matter down until tomorrow rather than voting on it, Mrs Johns, Mr Tilson?
Mrs Johns: I believe there may be an alternative, but this is not it and I am not going to vote for this at any time. I'll tell you why, if we can go through that process, and then we can decide. But you finish first and then we'll go.
Mr Marchese: No, I've finished. I was just trying to be helpful.
Mrs Johns: In your (i) one you're talking about a capable person. With a capable person, we should respect their wishes -- not "to the greatest extent possible." We should respect their wishes, period.
In (ii) we're talking about a person who is still capable, I believe from what you've said, on the small part, which is section 14 and section 15 of the act. Basically what we have here is a person who is capable or is incapable. I mean, there's no grey area there. The person is capable, so he makes the decision he's capable of, or he's incapable and then he gets a substitute decision-maker. So I also have a lot of problem with the second one as a result.
In (iii) the person is incapable, I think, because he's getting a substitute decision-maker. So the substitute decision-maker makes the decision for the person. I believe if the person is capable, we have dealt with that in (c). If the person is incapable, we have dealt with it in (c)(ii). And the person who's in the middle there is either capable or he's incapable.
I have lots of problems with this. To stand this down will not help me. So from my standpoint, I don't need to stand this down.
Mr Klees: I can't disagree with the intent we have here. What we don't want to do is conflict with other parts of this bill, and I hear what my colleague is saying in terms of having all of these bases covered off. My suggestion would be perhaps that we do stand this down and do have an opportunity to talk about this and bring it back tomorrow, only from the standpoint that I think it's important that this government is seen to be putting that principle front and centre.
If our colleagues opposite, after all this time of spending a great deal of time on this subject, are unclear that this principle is clearly set out in the legislation we're dealing with, if the legislators here are unclear, perhaps we need some rewording to make it clear. If we have to spend hours explaining to each other that we want to honour the rights of people in decision-making and we're not clear about it here, there's something missing. That would be my suggestion.
Mr Marchese: Mr Chair, I move that we stand this matter down.
The Chair: You have to have unanimous consent for that, because we're dealing with it in order. We've been through this. Do we have unanimous consent to have this amendment -- no, we do not have unanimous consent.
We'll now go to Mrs Caplan for a motion.
Mrs Caplan: I'd like to move adjournment.
The Chair: I assume you're moving to adjourn this hearing till 10 o'clock tomorrow morning in room 151.
Mrs Caplan: Yes.
The Chair: Is there anyone opposed to that motion at this time? We have opposition. All those in favour of the motion to adjourn? All those opposed? The motion is defeated. We shall proceed.
Mr Marchese: I want a recorded vote on this motion, Mr Chair.
The Chair: Since there are no further persons on my list to debate the amendment proposed, shall the amendment carry?
Ayes
BOYD, MICHAEL BROWN, CAPLAN, MARCHESE, RAMSAY. NAYS
DeFaria, Doyle, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: The amendment is lost.
Mrs Caplan: Mr Chairman, I'd like to move at this time that the committee adjourn until 10 o'clock tomorrow morning.
The Chair: You've already moved the same motion. I don't know how we can get another --
Mr Michael Brown: There was an intermediate piece of business.
The Chair: That's true.
Mr Marchese: There was already agreement on the time.
The Chair: No, there's no agreement. Can we reach an agreement? The motion Mrs Caplan made is that we adjourn at this time. If that is not suitable, can we reach an agreement about when we will be adjourning? Perhaps you can help me.
Mr Tilson: We've only passed three sections all day, and you want to adjourn at 5 o'clock?
The Chair: Is there a quota?
Do you wish a formal vote on the motion, Mrs Caplan?
Mrs Caplan: Yes, I do.
The Chair: We have a motion to adjourn until 10 o'clock in the morning. All those in favour? Carried. We're adjourned.
The committee adjourned at 1703.