Legislative Assembly of Ontario

BRIAN'S LAW (MENTAL HEALTH LEGISLATIVE REFORM), 2000 / LOI BRIAN DE 2000 SUR LA RÉFORME LÉGISLATIVE CONCERNANT LA SANTÉ MENTALE

CONTENTS

Wednesday 14 June 2000

Brian's Law (Mental Health Legislative Reform), 2000, Bill 68, Mrs Witmer / Loi Brian de 2000 sur la réforme législative concernant la santé mentale, projet de loi 68, M^me Witmer

STANDING COMMITTEE ON GENERAL GOVERNMENT

Chair / Président
Mr Steve Gilchrist (Scarborough East / -Est PC)

Vice-Chair / Vice-Présidente
Mrs Julia Munro (York North / -Nord PC)

Mr Toby Barrett (Norfolk PC)
Mrs Marie Bountrogianni (Hamilton Mountain L)
Mr Ted Chudleigh (Halton PC)
Mr Garfield Dunlop (Simcoe North / -Nord PC)
Mr Steve Gilchrist (Scarborough East / -Est PC)
Mr Dave Levac (Brant L)
Mr Rosario Marchese (Trinity-Spadina ND)
Mrs Julia Munro (York North / -Nord PC)

Substitutions / Membres remplaçants
Mr Brad Clark (Stoney Creek PC)
Ms Frances Lankin (Beaches-East York ND)
Mrs Lyn McLeod (Thunder Bay-Atikokan L)
Mr Richard Patten (Ottawa Centre / -Centre L)
Mr Joseph Spina (Brampton Centre / -Centre PC)
Mr Bob Wood (London West / -Ouest PC)

Also taking part / Autres participants et participantes
Ms Diana Schell, legal counsel
Ministry of Health and Long-Term Care
Mr Gilbert Sharpe, director, legal services branch
Ministry of Health and Long-Term Care

Clerk / Greffier
Mr Viktor Kaczkowski

Staff /Personnel
Ms Laura Hopkins, legislative counsel

The committee met at 1004 in room 228.

BRIAN'S LAW (MENTAL HEALTH LEGISLATIVE REFORM), 2000 / LOI BRIAN DE 2000 SUR LA RÉFORME LÉGISLATIVE CONCERNANT LA SANTÉ MENTALE

Consideration of Bill 68, An Act, in memory of Brian Smith, to amend the Mental Health Act and the Health Care Consent Act, 1996 / Projet de loi 68, Loi à la mémoire de Brian Smith modifiant la Loi sur la santé mentale et la Loi de 1996 sur le consentement aux soins de santé.

The Chair (Mr Steve Gilchrist): Good morning. I will call the committee to order. This is the continuation of clause-by-clause hearings on Bill 68, An Act, in memory of Brian Smith, to amend the Mental Health Act and the Health Care Consent Act, 1996.

When we left off, you will recall we had deferred one motion and we had completed some others subsequent. I would start off by asking the committee if you would like to go back to amendment number 4?

Mr Richard Patten (Ottawa Centre): We left off at number 8, did we not?

The Chair: We had deferred amendment number 4.

Mr Patten: Is there a way that we can periodically remind ourselves that if our goal is to finish by 6, to proportion our time somewhat in light of that?

The Chair: We'll certainly make an effort to do that, Mr Patten.

Ms Lankin, I think you had actually-one of the opposition parties had asked for the deferral in the first place.

Ms Frances Lankin (Beaches-East York): I believe it was actually Ms McLeod. I supported her in that, but it was Ms McLeod who asked for the matter to be set down.

The Chair: I would leave it up to the committee if you want to-

Ms Lankin: Could you please reference which amendment-

The Chair: That was amendment number 4 in your packet.

Ms Lankin: Thank you.

The Chair: Subsection 1(7.1). Is the committee prepared to resume the debate on that clause, having had an opportunity now to review? Are you prepared to proceed with amendment number 4, Mr Clark?

Mr Brad Clark (Stoney Creek): In terms of discussing that particular motion, if I may separate two areas to start off with, so that we have a better understanding.

The first section deals with "qualified health practitioner." A qualified health practitioner is a health practitioner as defined in the Health Care Consent Act itself. It's our view that that particular clause in this amendment is redundant. It has already been dealt with in terms of a definition under the Health Care Consent Act.

The second concern that I have is the fact that "service provider" appears in four different acts, and the concern we have is how it would apply, what the definition is for a service provider, and to what extent and expanse we deal with "service provider." At this particular point in time, it's the government's position that the first section we've already dealt with under the Health Care Consent Act, and the second section we can't support because "service provider" really does not refer back to any specific act.

Ms Diana Schell: If I might just add as well, the definition of "health practitioner" is brought into the bill in section 1(4), and all of the people listed as health practitioners are regulated health professionals who have duties and responsibilities under the Regulated Health Professions Act and then profession-specific legislation.

Ms Lankin: I think you miss the point. Qualified health practitioner-and I made the reference on Monday when we met that we could be more particular if we wanted to refer to regulated health professionals, but you've already made that tie-in in the definition section, indicating that it means the same as in the Health Care Consent Act. What this particular clause attempts to do is indicate, as for medical practitioners, when referring to a community treatment plan, that there would be a prescribed list of qualifications above and beyond what consists within the Regulated Health Professions Act. It's like a subspecialty; the kinds of expectations government has of the people who will be involved in dealing with this very particular and small and most seriously mentally ill population that we keep hearing are the group that will be subject to community treatment orders.

Similarly, with qualified service provider, there is no legislated regime called "service provider." I think we're all aware of that. But through this, we refer to the service providers who are going to be party to, and have obligations under, the community treatment order provision. So again, this an opportunity to set in place a structure where, through regulation, you can list your expectations as a kind of experience or qualifications or criteria to make someone eligible to be an individual who can be party to planning, signing on, agreeing to and having obligations under a community treatment order.

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I don't disagree with anything you've said in terms of your response about qualified health practitioners or qualified service providers and what they mean. The point that was being raised was, when referring to a community treatment plan, giving a set of expectations to regulations of what qualifications those people would have.

Ms Schell: If I might just add, we do have regulatory authority in the bill. I take your point that it can be done through regulation, and that's what we would plan to do.

Mrs Lyn McLeod (Thunder Bay-Atikokan): I think the concern has been thoroughly stated over the course of the last day, and with Ms Lankin's comments today. I think it's important to note for the record that there are a lot of areas in the introduction of community treatment orders where there are going to be concerns about the readiness of the community to actually provide the treatment and support, and particularly whether or not the community is equipped to provide the kind of treatment and support that will be needed by people who are under involuntary commitment orders. If consent is given by substitute decision-makers, I think there's going to have to be a lot of work done in terms of the training of the health professionals, as well as any other service providers and caregivers, as to the sensitivity of the population and the way in which the interactions with this group of people have to take place. I think it's much broader, actually, than the health practitioners and the service providers who are identified in the proposed amendment.

I think it goes right through to the nature of supportive housing. I met yesterday with the chairs of boards that provide supportive housing for those with mental illness. Thank God they're there, because they set qualifications themselves. They set standards themselves in the absence of any government standards or ability to ensure that a particular quality of service is being met.

We spoke during the hearings-and others spoke-about the onus of responsibility on government. I believe the onus is now on government to ensure that there is a quality of standards in the provision of community treatment, both with regard to this very sensitive population and indeed with regard to all those with mental illness. If there is a particular strength of this portion of the bill, to me, it's holding the government accountable to develop the regulatory framework that will ensure there is a quality of service delivery here.

With that, Mr Chair, I'm content to pass the rest of the debate.

Mr Patten: I'd just like to make a comment. I buy the idea that the health care group is covered, but I believe that the ACT teams right now-and I think there are about 40 in place at the moment around Ontario-have set up a mechanism where they are reviewing their particular response, given their anticipation that community treatment orders will come to pass, and what their response would be and how ready they are for this etc.

I guess the term "treatment plan" will be a generic term because while there will be treatment-that will take different forms-presumably there will also be other things that are not technically treatment. They will be service providers. In other words, I'm thinking of counsellors. I'm thinking of agencies that have a whole battery of volunteers who will spend some time and go shopping with an individual, or take him to the movies or whatever. If we're saying that anybody in that plan has to have some kind of accountability, then the only opportunity for including everybody, in my opinion, is to have, in support of Lyn's comments, some kind of reference to some accredited, qualified, recognized agency; functions, counselling, whatever it is. But it's not medical. It's a non-medical support system that will be a part of and play an important role in the treatment plan itself.

The Chair: Any further debate? Seeing none, I'll put the question to the members.

Ms Lankin: Can we get a recorded vote, please?

AYES

Lankin, McLeod, Patten.

NAYS

Barrett, Clark, Dunlop, Spina.

The Chair: The amendment is defeated.

That takes us now to amendment number 9 in your packet. Oh, forgive me. That's the end of section 1.

Shall section 1, as amended, carry? All those in favour? Opposed? Section 1, as amended, is carried.

Now, over to you, Mr Patten.

Mr Patten: Can I just comment on this?

The Chair: You have to read it into the record.

Mr Patten: I have to read the whole thing? There's a lot to read.

I move that the bill be amended by adding the following section:

"Applicable principles

"2. The following principles apply with respect to treatment under this act:

"1. Persons who suffer from a severe mental disorder should have access to the medical treatment that they require and it should be available as early in the course of their illness as possible.

"2. Treatment of these persons should occur in the least restrictive environment possible.

"3. Community treatment orders are intended to be used with respect to persons who experience a repeated cycle of involuntary admission to hospital, the stabilization of their condition while in hospital, their release from hospital, a failure to continue to take their prescribed medication and a deterioration in their condition and subsequent involuntary readmission to hospital.

"4. A need for involuntary admission to hospital remains because of the reality of severe mental disorder.

"5. Persons who, in the absence of their own consent, require treatment for mental disorder do not need to be admitted to hospital in order to receive appropriate treatment."

My comment on this section is that it has to be seen in light of whether or not the government will accept the recommendations related to a sort of bill of rights, because if it were, some of these principles are transferable. But I would remind the committee that the function of this section was an attempt to address what we talked about for a preamble. We found that a preamble wasn't really going to work in this instance because we couldn't put a preamble to the whole act itself; we were dealing with amendments. So our drafter suggested that one other way to do that was to put in a purpose clause which gets at what you're trying to get at. What we were trying to get at was, could we be more descriptive about the target population that this bill would attempt to address?

In that light, we put forward some of these principles. Number 3 is really the heart of the whole thing. Some of the others could be transferred to a bill-of-rights list, if we were to move in that direction. I'll just make those comments and leave it at that.

Mr Clark: There are a number of the principles stated by Mr Patten and the Liberal Party that we agree with, and the intent makes sense. I understand that we are specifically dealing with mental health care itself, but the government is also in the process of developing a much more expansive bill of rights for patients, for the entire health care system, in which a number of these things will be addressed.

Further to that, there are a number of clauses in here that you've mentioned which are touched upon throughout the bill itself. As well, there are other amendments that are coming up that I think will address some of the concerns we have. What you're trying to deal with-and you stated it very articulately-is that originally we talked about the preamble itself. Now we're at the point where we recognize, because the preamble only attaches itself to Bill 68, when they finally compile all of those acts together in the new RSO for the Mental Health Act and the Health Care Consent Act, the preamble is lost. It won't appear anywhere. We recognize that also. For example, in section 33.1, there's a motion coming that will specifically deal with that issue in trying to narrow the definition. At this point, we understand the intent, but we don't support where we're headed right now in the amendment.

Mrs McLeod: My understanding is that the reason this is presented in this format is because it is an acceptable amendment to the act in terms of it being in a form which would be acceptable and possible legally. That's why it's not worded as a preamble. If that's the case, I would be interested in knowing that specifically. The principles that Mr Patten set out here are simply the principles that have been stated as the reason for the act being brought in. There is nothing here that calls on a financial responsibility for government or precludes government's ability to regulate. I'm not sure I understand what the government's problem is.

The Chair: Do you wish to respond to that?

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Ms Schell: I don't know that I have much to add to what Mr Clark has said. He has indicated that there is a Blueprint commitment and a budget commitment to developing a patients' bill of rights. By putting this in this particular bill, it is specifically limited to the population dealt with under this legislation.

I believe Mr Clark was indicating that many of the items that are dealt with in this particular motion are dealt with substantively elsewhere in the act, and there are a number of other motions we have with respect to specifically addressing the concern that came up in the discussion about the preamble, which I believe was directed towards trying to articulate the limited application of the CTO rule. As we all know, there are a number of motions later in the package that deal with that issue perhaps a little more directly.

Mrs McLeod: Mr Chairman, we will talk about the bill of rights because it's the next proposed amendment and it is acknowledged as somewhat broader even than the principles statement.

I just want to come back to that. This is no longer a preamble if it is in order as an amendment to the bill. If the principles are totally consistent with the government's intent in bringing forward the act, there is value in stating separately a list of principles, just as I will argue on the next amendment that there is value in having a bill of rights specifically for those with mental illness. But in terms of treatment under this act, which is what these principles address, if they're consistent with the act, there is value in having them identified as principles.

There are huge issues out there about trust and coercion and intent, and a statement of principles like this would go a long way to saying to people, "This act is being put forward with a sincere attempt to provide the most appropriate treatment for people."

I still have some concerns, but as Mr Patten will tell you, I've become convinced in the course of the hearings both that the act can serve a purpose and that the government's intent, genuinely, is to provide better access to treatment for this group of people. I still have concerns about guarantees of funding and resources, but I believe the intent is there. All the principles do is specify what the government has stated its intent to be. I just have very real concerns, if the amendment is legally in order, because it's no longer a preamble, why there would be a problem with this.

Mr Clark: We have not disputed whether your amendment is in order or not in order. The government's position is pretty clear. We're in the process of putting together a comprehensive patients' bill of rights for the Ministry of Health that deals with the entire health sector. It's not simply this act. So it's our viewpoint that we would rather deal with it under that bill of rights, everything together, as opposed to here. You may disagree vehemently with that, but it still doesn't change the position of the government that they have every intention of dealing with this matter but under a patients' bill of rights as we're developing it right now.

Ms Lankin: I hear you clearly, and you're right, we may disagree with you vehemently on this. Quite frankly, the intransigence on this matter and, as I understand, on some matters coming up which have been clear from the beginning are of particular importance to our caucus-issues like the mental health advocate's office, the listing of minimum services available in communities, which I understand the government is also refusing to support-significantly undermines my confidence in the intent that I've heard expressed.

I personally think that we could sit down and work out some better wording. I think the motion before us on pages 9 and 10, and the NDP motion on page 12, all attempt to arrive at the same point. The approach we have taken is to take the preamble or purpose clause with respect to community treatment orders and place it in section 33.1, which is similar to the approach the government is taking on that.

Similarly, the issue of treatment in the least restrictive environment possible, with respect to CTOs at least, we've moved that right into the criteria section, although I don't oppose it appearing here as well.

My concerns about the specific language on pages 9 and 10 of the amendments are references to community services, when I believe, if you look on page 12, we're talking about mental health services. So whether those services are provided in a facility or in the community, the same rights apply.

To say that you are working on a bill of rights, which may or may never come to fruition, continues for me to be the problem that I have and have had for a number of years, and even when I was resident in the ministry, in which I would suggest that mental health is the poor cousin of the health care system. It's overlooked largely. It doesn't get the same kind of attention in the media and therefore the same kind of political management attention that overcrowded hospital emergency rooms do or other kinds of problems like waiting lists for cardiac care or cancer care.

The type of polarized views in the community about this legislation and the direction that we are taking together as legislators here cannot be totally assuaged but can be addressed, can be acknowledged, if legislators take the step to try and assure people that their concerns have been heard and even though we are proceeding with a piece of legislation that contains a new regime of community treatment orders, to which there is a lot of objection out there, we are doing so in a way that is both respectful of their rights and understanding of the nature of concern of the potential for abuse.

These kinds of phrases that have been incorporated in the Liberal motions and in the NDP motions attempt to do that. They stand alone for this sector and this group of patients apart from any generalized bill of rights. At such time the government brings forward a bill of rights which you think is comprehensive and no longer requires this, you can include an amendment in that bill to repeal this section.

Community treatment orders are coming in now, broadened involuntary committal criteria are coming in now, and we should attempt to do some balancing in this legislation to address the concerns, the very legitimate concerns, that have been brought before us in no small numbers during these hearings.

If the government refuses to move on this and a couple of other areas that I've alluded to, I do seriously then question the intent of all of what you said. It's impossible for me to accept that you agree with the principles of what we're saying, you agree with the approach of what we're saying, but you're simply not going to put it in law. The protection for people is when it's in law.

Mr Patten: I just want to underline what Ms Lankin has said, that the function of it is a communicative function. We're looking at this legalistically now and we're saying, "Well, it's covered here, it's covered there, it's covered there." We have people, myself included, who have difficulty reading a legal document, wondering, "What the hell is all this about?" One of the intents I thought the committee said it had was to try and provide some focus. By the way, I'm not hung up on the wording. We could come back on it and agree on some different wordings on anything, except that I think we did say we wanted to assure people that we had a section in there that described-when we're talking about a preamble-the target population, period, that this would allay fears for people who were thinking about the big police sweeps and things of that nature, and that we would have a section. We were advised, "That's not going to work very well; we can do a purpose clause," so there was something of this nature here.

As we go through this process, what I think we may find, and where this may break down, is where there are people making the decisions who are not here at the table. I empathize with the government side, and members who have gone through the process I think are empathetic to certain pieces. You're being told, "No, we don't agree with this, we don't agree with that," because of people in the Premier's office or whatever, other people, and they're not part of the process. They don't have a sense of the subtleties, the spirit or the ethos of the nature of the debate and the range of concerns that are out there in the community.

I appeal to you to consider that. As Ms Lankin has said, and I'm sure Ms McLeod as well, if we want to take the three different pieces and put something more simply, that's fine with me. If you want to stand it down for a moment, that's fine with me. But I truly urge you to provide some focus for this. I understand this is to replace a preamble, that a preamble would no longer have a purpose. What happens to the preamble we put in? Does that still stand as it is but only for this bill and nothing else?

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Mr Clark: Yes, the difficulty we have-not the government; all of us as parliamentarians-is that the Mental Health Act and the Health Care Consent Act are previous documents that have already been passed into law. We are now amending them.

A preamble to an act, if it's set up at the initial enactment of that particular statute or legislation, becomes a part of that act. However, if we amend the act at a later date through another bill in the Legislature, the preamble is no longer a part of the original act; it's simply a preamble to the intent of the new bill.

Mr Patten: I understand that.

Mr Clark: When you actually see the acts come out themselves and there's an RSO number on it, it's a compendium of all of the amendments to that act. So here is a new act, as it stands today. The preamble would no longer appear.

What we have tried to do, and it's unfortunate that Ms Lankin is starting to question the intent because my intent has not changed; neither has the-

Ms Lankin: Could I be clear? I'm not questioning your intent. It's the government's intent on this. It's the orders that are coming from outside this room that I object to, and I find it so frustrating.

Mr Clark: What I have tried to do is meet our intentions for the preamble in a number of amendments that are coming before this committee. Perhaps what I might suggest on this particular motion is that if we stand it down for the time being-that gives us an opportunity to move through a number of the other motions-and then come back to it we might have an opportunity to look at specific clauses in it that you feel still have not been addressed elsewhere, and that may give us an opportunity to bring it back in.

I'm committed to working through this process, and I have to state that with the number of amendments that are coming forth that have been catalysts from the opposition parties, we have improved the bill. So if there's agreement to standing it down, this particular one, then we can come back to it.

The Chair: Is it the concurrence of the committee we defer consideration of amendment 9? Seeing no dissent, it's deferred.

That takes us now to amendment number 10.

Mrs McLeod: I'll read this for the record, Mr Chair, but could I also suggest, with the indulgence of the committee in the interests of time, because the NDP motion that follows this one-I think number 11 is actually part of number 10, as our numbers go-is on a very similar issue, it might be helpful if I read mine, make a comment on it and then have Ms Lankin read hers and have the discussion on both together, to save time, because they're both bill-of-rights discussions. Is there a way to do that?

The Chair: We could do that, and you're asking to have the debate now, or do you want that deferred as well?

Mrs McLeod: I'm just suggesting that I read mine. I want to make one comment on it. It's very similar to the New Democrats' motion.

The Chair: Normally Ms Lankin would simply put her points rather than read her motion separately.

Ms Lankin: In this case, the motions have substantive enough differences, but what I suggest is that it actually is part of the discussion, that we just decided to stand down, that it would be helpful if Ms McLeod could read the motion, make a comment and stand it down, I would read mine, make a comment and stand it down, and that the three come back together for consideration as Mr Clark has indicated.

The Chair: That's fine.

Mrs McLeod: I move that the bill be amended by adding the following section:

"1.1 The act is amended by adding the following section:

"Patients' Bill of Rights

"6.1(1) The following rights apply to all persons:

"1. Persons who suffer from a mental disorder must have access to the medical treatment that they require and must have it as early in the course of their illness as possible.

"2. Treatment must be given in the least restrictive environment possible.

"3. A person receiving a community service has the right to be dealt with by the service provider in a courteous and respectful manner and to be free from mental, physical and financial abuse by the service provider.

"4. A person receiving a community service has the right to be dealt with by the service provider in a manner that respects the person's dignity and privacy and that promotes the person's autonomy.

"5. A person receiving a community service has the right to be dealt with by the service provider in a manner that recognizes the person's individuality and that is sensitive to and responds to the person's needs and preferences, including preferences based on ethnic, spiritual, linguistic, familial and cultural factors.

"6. A person receiving a community service has the right to information about the community service provided to him or her and to be told who will be providing the community service."

Just by way of a very brief comment, this is a bill of rights. It does go beyond the concept of principles. I believe it's important that we have a bill of rights in the Mental Health Act. I understand the government says that they are working on a comprehensive bill of rights. I would just say to Mr Clark that the argument that the government is working on a comprehensive bill of rights simply does not hold water as a reason for not considering a bill of rights in the Mental Health Act. There is already a bill of rights in the Long-Term Care Act. If you are bringing forward a comprehensive patients' bill of rights that subsumes the bill of rights that's in the Long-Term Care Act as well as any bill of rights that would be in the Mental Health Act, I assume you will have to repeal any outstanding bills of rights and encompass them in your patients' bill of rights.

I find it hard to imagine that the patients' bill of rights will be so all-encompassing that it will take away the value of having a bill of rights specifically for long-term-care patients as it now exists, and therefore it's very appropriate to have a bill of rights specifically for people who need mental health treatment. If we're serious about the rights of patients, then we have to make sure that those rights apply no matter what setting they're being treated in, and it doesn't hurt to re-emphasize the rights in each of those separate acts.

I do want to make two comments. If we're looking at all of these together, on what are essentially our parts 2 to 6, I prefer Ms Lankin's motion to ours, because ours is limited to the community service. That was an error on our part and it should be broader than that, so I would certainly prefer the NDP wording on that.

One major difference with ours is the first part, and that is, "Persons who suffer from a mental disorder must have access to the medical treatment that they require and must have it as early in the course of their illness as possible." I recognize that that may be a problem for the government, because it does raise the accountability standard beyond the 5% of the population that this particular bill is addressing. I feel it's important to put it in, and the reason for that is the concerns we heard about the fact that the intensive need for treatment of people who are in this 5% who will be affected by the community treatment orders or involuntary commitment may cause a bumping, that they may take priority over the other 95% of people who need treatment for mental illness. Therefore, I think it's important to have a statement of rights or a statement of principle that there must be a concern to make treatment available as early as possible to all those who need treatment for mental illness and not exclusively to the 5% this particular bill targets. That's why I feel that this right in the overall Mental Health Act is an important one to state.

With that, I'm happy to defer my amendment until there can be some consideration of the whole issue of rights and principles.

The Chair: I think we have agreement-nods all around. Ms Lankin, if you'd like to put your amendment, we'll defer Ms McLeod's amendment.

Ms Lankin: I move that the bill be amended by adding the following section:

"1.1 The act is amended by adding the following section:

"Part 1.1

"Rights of persons receiving mental health services

"10.1 A person receiving mental health services has the following rights:

"1. The right to be dealt with by the service provider in a courteous and respectful manner and to be free from mental, physical and financial abuse by that person.

"2. The right to be dealt with by the service provider in a manner that respects the person's dignity and privacy and that promotes the person's autonomy.

"3. The right to be dealt with by the service provider in a manner that recognizes the person's individuality and that is sensitive to and responds to the person's needs and preferences, including preferences based on ethnic, spiritual, linguistic, familial and cultural factors.

"4. The right to information about the community services provided to him or her and to be told who will be providing the service.

"5. The right to timely treatment."

I have spoken already to the reasons I believe these sorts of principles and rights should be spelled out in the bill. I've already spoken to the reasons I reject the argument that a sometime-down-the-road comprehensive patients' bill of rights negates the need or the desirability of proceeding now.

I would like to speak to the specific language here and indicate that we've framed ours in respect of rights of a person receiving mental health services. As Ms McLeod has alluded to, that would cover individuals who are seeking services both in an institutional-facility-based setting or in the community. We believe that is important.

The concept that Ms McLeod referred to in section 1 of their amendment talking about people having access to medical treatment "as early in the course of their illness as possible"-which is something we agree with-we think we need an even broader protection; that is, the right to timely treatment at any given time in the course of someone's illness. That's one of the reasons I support standing these down and seeing if there is a way of working through the language, because I think we're all trying to get to the same place and there are some good ideas contained in all aspects of that.

At this point in time, I would ask for agreement to stand it down and include these in the discussion with the prior two amendments.

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The Chair: I think we have that agreement on the committee, so that amendment is stood down as well.

The next amendment will be the one on page 13. I am going to have to rule that the amendment is out of order. It amends a section of the Mental Health Act which was not originally opened up by Bill 68, and under our rules that would place that amendment out of order.

Ms Lankin: May I seek unanimous agreement for the committee to give consideration to this amendment?

The Chair: You may, indeed. Ms Lankin has asked for unanimous consent to allow us to open up the section that's spoken to under this amendment. Is there unanimous agreement?

Ms Lankin: Perhaps I could explain why, very briefly, in two sentences, so people know what I'm asking for before we put it to them.

Looking at the wording here, you'll see 11(1) repeats the paragraph that is in the existing legislation. It's only there because it has been renumbered. What is added here is a provision of right to timely treatment: "If a person voluntary seeks treatment for mental disorder, the person has a right to obtain that treatment in a timely manner."

This is the provision of the bill with respect to hospitalization. One of the concerns with the broader criteria for involuntary committal is that there will not be sufficient resources and sufficient beds available and that people who attend at hospitals voluntarily seeking treatment will not be able to get that treatment. We heard it in the hearings. This is an attempt to try and address that concern.

The Chair: Ms Lankin has now given her rationale for the amendment. Is there unanimous consent? I'm sorry, Ms Lankin, there was not unanimous consent. However, you're up next on page 14.

Forgive me. Once again I'm getting ahead of myself.

Are there any amendments to section 2? Seeing none, shall section 2 carry? All those in favour? Carried.

Sorry, Ms Lankin. Now the amendment on page 14.

Ms Lankin: I move that clause 15(1)(f) of the Mental Health Act, as amended by subsection 3(1) of the bill, be struck out and the following substituted:

"(f) serious physical impairment of the person within three months."

There are a number of like amendments that will come up over the course of our discussions here. This deals with a section of the bill that strikes out the word "imminent" in the criteria for ordering an assessment by a physician, a justice of the peace-a number of places in the act.

We heard significant testimony about how the word "imminent" had become a barrier to practitioners in the field acting in a manner that was consistent with the intent of the legislation. We also heard a number of people from a legal perspective come forward and say they couldn't understand that; that the language was clear and had been interpreted by the courts, and in fact "imminent" had been interpreted to mean three months and that that was pretty clear.

I scratched my head at that one, because in my everyday use of the language, the word "imminent" doesn't mean three months; it means imminent, that it's going to happen within seconds. So I am quite sympathetic to the argument that that word perhaps had taken on a different meaning than the intent of the legislators of the time, and certainly a different meaning than the interpretation of the courts in the everyday use of the language by practitioners out there. I understand why families and others have found it to be problematic.

It is clear that there was a significant attempt on the part of the government, through the education program that was being put on by the head of the review board, to give some clarity to people about various aspects of the existing law that were perceived as barriers, and one of the things that was attempted to be clarified was that from the legal standards and the court interpretation the word "imminent" really had a meaning of approximately three months. The point I have made previously and make again today is, I think we err if we try to correct a problem of something that was incorrectly interpreted out there by giving no guidance at all. By taking the word "imminent" out and leaving it without any time reference at all, the ordinary, everyday interpretation will take shape out there as well.

If we have an intent of what we mean, can we not say it clearly? If the government has a view that three months is the incorrect time frame, then fine, I'm willing to have a discussion about that. I only chose three months because that is the evidence before this committee as to the legal and court interpretation of the word "imminent."

With that, I'd be interested to hear Mr Clark's response on this, and perhaps would have further to say after that.

Mr Clark: One of the concerns I have on a personal level, and the government has also shared the same concern, is that the psychiatrists and general practitioners who are using the Mental Health Act and the Health Care Consent Act-using the acts that are before them-have stated to us that it is not a precise science to predict that something is going to happen within a certain time frame, that there's going to be, in this case, serious physical impairment of the person within three months.

I don't know of any psychiatrist who would come in here with any degree of certainty and be willing to state that's going to happen within that time frame, and that concerns me. They may feel there's a serious risk of serious physical impairment, they may feel there's a risk of hurting oneself or hurting others, but they don't know the time frame. You can't predict when it's going to happen.

We heard psychiatrists talk about suicide. You can't predict if it's going to happen, let alone when it's going to happen. But you feel there's a precursor, that it could happen, that there's sufficient cause, in their reasonable judgment, that there's a risk, and that's why they need to act.

I'm really reticent to put a time frame in. I think it actually puts us back to that same hoop again, "What is imminent?" So if we have three months in there, would the psychiatrist say, "Well, I'm not so sure it'll happen in three months, so I'm not going to touch it," because it's going to happen, perhaps, in four months?

Mr Patten: I agree with 80% of your argument, except I would arrive at a different conclusion. The analysis was, of course, that "imminent" was interpreted to mean "immediate," and someone said, "Well, he's not quite bad enough," ignoring that the psychiatrist or the attending physician would still acknowledge there was a need for treatment. I think what this bill is attempting to do is move from strictly a danger arrangement to maximizing addressing the need for treatment regardless. In the bill we even talk about the earlier stages possible when you can help somebody. We know the likelihood of success will be far greater, as is true with any disorder or disease.

I have trouble with a particular time frame for a different reason, not "imminent" interpreted as "immediately." If there is a debate and someone says, "Our facility is crowded, this person can kind of get by for a while and I've got a three-month period to live within, therefore I'll look at a schedule down the line," knowing full well that that person needs treatment right now, I'd like an opinion, legally, as to whether that would carry some weight with that particular figure, because I feel it's stronger if you don't put a time frame on it but the accountability is on the psychiatrist to answer the question, "Did you, in your assessment, feel this person required treatment?" regardless of what the level is.

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Ms Schell: That is a problem that I think could very well materialize, along with many other problems, if psychiatrists and physicians working in psychiatric facilities were held to a standard that requires them to be so accurate in their predictions. I think the other point Mr Clark made, which is of great concern from a legal point of view-we heard a lot of information to the effect that the word "imminent" has caused a lot of confusion because it's imported into the other criteria. It would be my view that if we put three months in one criterion, it's going to call into question the interpretation of the other provisions in the act which we know have been interpreted by the courts and have withstood constitutional review up to the Court of Appeal. It's that level of doubt related to both how the term would be used and understood and also how a physician and psychiatrist would possibly cope when faced with this that, in my view, would be highly problematic.

Ms Lankin: If I may, that's the exact reason that there has to be specificity. I totally reject the argument that they may import this into another section of the act, which you then go on to say has withstood challenge up to the Supreme Court. It will continue to withstand challenge up to the Supreme Court. In fact, if it were imported into these-I'm sure you're talking about (d) and (e), "serious bodily harm to the person" or "serious bodily harm to another person"-it would broaden the scope of application of those areas, not narrow it in any way. It would have the opposite effect as having imported "imminent." Those are evidentiary levels that it appears that someone is going to cause serious bodily harm. I think any common person looking at it and interpreting it is going to think, "That's likely to happen in the near future." If you give it a three-month period, you're even extending and giving broader latitude to the psychiatric community, if you're right that that would be imported into those sections.

But coming back to (f), the section we're dealing with, "serious physical impairment of the person," let's remember the sections we're talking about here. We are broadening the criteria for involuntarily committing people, for taking away people's civil rights. We must be so careful of the way we do this. To leave something broadly open to interpretation and to the potential of abuse, that theoretically at some point in the future this person could become seriously physically impaired because of the disease and the traditional course of decline of an individual who has this disease-to me as a legislator it's untenable that we would leave it wide open.

Just to think back: Before you brought in this legislation, you sent out a representative from the review board to do an education program sponsored by the ministry in which you were defending the clarity of the legislation and the word "imminent" and explaining and educating people as to what it meant and taking the time to tell them that it meant three months. If that's what you meant as recently as six months ago, why are you not prepared to put it into the legislation now? Yes, it puts a higher standard of accountability on people in their decision-making. To simply say this is not a science and we can't predict-all these sections ask for doctors to give their opinion and to predict to a certain level. What we're asking here is that we also give some clarity to people so that there is a greater sense of protection from abuse of this.

I haven't heard anything that convinces me there is a down side in this. We have fixed the problem of the layperson's interpretation of "imminent," as it didn't accord with what the courts were deciding the legislation means. We're putting in something very specific, in terms of three months, which is what we have been told, and the ministry seems to support, has been the intent all along. Surely that gives greater clarity than leaving it wide open without any time reference at all.

Mrs McLeod: Just briefly, I share Ms Lankin's concerns about the potential coerciveness and potential abuse of any involuntary commitment. I guess I have a concern that putting a time frame around it doesn't lessen that significantly. I really believe the protections against misuse of this and against coercion have to be built into very stringent criteria and into rights protections as opposed to into a time frame.

The Chair: Further debate? Seeing none, I'll put the question.

Ms Lankin: Recorded vote.

The Chair: Ms Lankin has asked for a recorded vote.

AYES

Lankin.

NAYS

Clark, Dunlop, McLeod, Patten, Spina, Wood.

The Chair: The amendment fails. Page 15, Ms Lankin.

Ms Lankin: I move that clause 15(1.1)(a) of the Mental Health Act, as set out in subsection 3(2) of the bill, be amended by striking out "or substantial mental or physical deterioration of the person or serious physical impairment of the person."

In the submission I made to Mr Clark and shared with the Liberal Party last week, I made it clear that this language and similar language that comes up in the next amendment-similar in its lack of clarity and its vagueness-gave me concern. Again, we're looking at trying to find the right way to capture those people who are at risk of deteriorating in our communities and getting them the help they need in a timely fashion, and I'm very supportive of the attempt to do that. But the language that has been proposed-and I know it has been worked through with some representatives of the psychiatric community; I know it is also opposed by some others in the psychiatric community-is very vague in its construction.

Let me read that to you: "... or substantial mental or physical deterioration of the person or serious physical impairment of the person." The thought of this imprecise science, as we just heard the government refer to, determining what is a "substantial" mental or physical deterioration gives me great cause for concern about the potential for abuse. Again, we're dealing with a situation where we're looking at the criteria for which a person can be involuntarily committed, in which we can take away their rights as a citizen, hold them against their will and provide certain aspects of treatment against their will.

I'm not going to take a long time, because I suspect there won't be support for this, given that the government did not seek to find improvements in this language. I had suggested as an alternative that we talk about how to tighten up this language, and those discussions haven't taken place and there haven't been any proposals come forward, so the default position I was left in was to move the deletion of these clauses.

I want to place on the record my concern about the way the language has been drafted, the vagueness of it. I think that while that meets the needs and desires of certain representatives in the psychiatric community who have worked on this language, I am convinced by speaking to others that it sets open a grave potential for abuse in the use of the involuntary committal criteria. I urge people to consider carefully their continued support for that language, given the severity of the civil right and civil liberties issues involved in the amendments to this bill.

Mr Patten: I would certainly be prepared to look at supporting a change in anything-the words don't bother me; it's whether or not the intent is substantiated.

Given the lack of substitute phraseology or wording, I wouldn't support removing this, because I believe this is extending compassion from a situation where people were perceived only to be a danger to themselves and to others from a danger clause. We've heard much testimony about the stigma of just highlighting people who are violent and one thing or another-we had a lot of discussion on that-to acknowledging that we have a responsibility to help people who are not violent but are causing damage to themselves. In that sense, there's a danger in terms of their own personal health, and the longer there's a repetition of mental or physical deterioration-in other words, if people go through consecutive episodes-the damage that is done to that individual is irreparable. It is not that this can be recaptured or that you can go through 15 or 20 episodes and that'll be just fine. There may be some people who can still retain an ability after that, and I'm aware of some factors, but we also know that there's continual brain damage that people are at high risk of experiencing. So, given no alternative wording for that, I would have to disagree with this.

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Ms Lankin: Just briefly in response, Mr Patten, I have to say that the section of the bill which contains this language has significant reference to the patient population group you are talking about. It's contained in language where we're talking about an individual who has previously received treatment for a mental disorder of an ongoing or recurring nature that when not treated is of a nature or quality that is likely to result in serious bodily harm to the person or another person, someone who has shown clinical improvement as a result of that treatment in the past, someone who is apparently suffering from the same mental disorder or someone whose personal history indicates that the mental disorder and the current mental disorder or physical condition is likely to cause harm. It is contained within a section that is, I think, intended to make the leap, as you said, from simply a danger or harm to public safety to one of treatment.

My concern is that we are also talking about involuntary committal for treatment. The fact that someone might well be described here and might need help, and in most cases might even be willing to seek that help in early stages and receive that help-in the end I think the person you describe gets captured under the community treatment order where they need a regime to help them maintain that treatment in the community so that the revolving-door cycle doesn't continue.

My concern is that where we are looking at removing civil liberties, we must be absolutely clear in the language we use and absolutely willing to take responsibility for defining the conditions under which it is appropriate to remove someone's civil liberties. I believe the wording here, while compassionate in reaching out to a group of people-in describing people who are the kind whose needs we would hope we have sufficient resources to meet in a timely fashion and to have sufficient intensive resources to intervene in their lives in a meaningful and helpful way-is not well enough defined and evidentiary based to withstand, in my view, the test of society taking away someone's civil liberties.

Mrs McLeod: Obviously this is the crux of the anguish many of us, maybe all of us, have in addressing this issue. I've heard the concerns, and I'm very sensitive to the concerns that have been brought forward in terms of the fears about both the way the act may be administered and the basic removal of civil liberties. I recall Mr Borovoy saying you can't limit civil liberties in any way, but I'm equally compelled by the testimony of the families who have said we have to move from the standard of dangerousness to a standard of care.

I really believe that even in the context of the other criteria for involuntary commitment, which have to be there and which add to the stringency of the determination that it's appropriate to have an involuntary commitment, if we go to solely bodily harm to self or others, we are returning to a criterion of dangerousness rather than a standard of care.

I hope we can build enough protections throughout the bill to ensure that will only work in a way which is truly supportive of that individual, because it's only if that's the case that you could possibly condone any limitation on liberty to this extent.

I believe we have to support the intent of the act, which is to move from solely bodily dangerousness to something which I agree is more ambiguous in determination, which is why I think the other criteria have to be very stringent.

The Chair: All those in favour of the amendment? Opposed? The amendment is lost. Ms Lankin.

Ms Lankin: I move that clause 15(1.1)(c) of the Mental Health Act, as set out in subsection 3(2) of the bill, be amended by striking out "or from a mental disorder that is similar to the previous one."

I have just made many of the arguments for this amendment. I think that all I've said about vagueness, lack of clarity, standards of accountability and willingness for a clear definition on the part of legislators hold. This section of the bill that I'm seeking to have deleted is contained in a section where the doctors are examining someone and the physician comes to the opinion that the person is apparently suffering from the same mental disorder as the one for which he or she previously received treatment, and then the wording goes on "or from a mental disorder that is similar to a previous one."

Again, we're talking about a cumulative list of criteria in which someone becomes eligible for involuntary committal. You've heard the arguments around the need to move from a danger-based concept to a treatment-based concept that Mr Patten put forward very eloquently, on which I agree with him. I may not agree with the words that are used, but I agree with the intent.

Again here in this section, however, it seems that what we are doing is building the greatest amount of latitude for the imprecise science of psychiatry that we can. I cannot ignore the voices that came forward to tell us of their experiences in the psychiatric system and of the abuses that have taken place, many of them historically chronicled, and some of what happens in research and experimentation taking place today will be chronicled in the future. I have no doubt about that. I don't cast aspersions on the good intent of many individuals, but I do believe the words in the laws that we put in place that give power to people must be very clear.

In this situation, we are giving power to physicians in their diagnoses and in their assessment of an individual to place them involuntarily in a psychiatric institution. I believe the standard of medical diagnosis, as imprecise as it is in the psychiatric area, should at least withstand a test of apparently suffering from the same mental disorder as the one for which the person has been treated in the past-and this links back to many other clauses where the person has been treated-and treatment was successful. You've heard those other provisions.

Why we need to build in an additional protection for the psychiatric community beyond already the vagueness of the word "apparently" to say that it could be a mental disorder which is similar to one-in many cases that's impossible to diagnose or tell in any event. In many other cases, it could lead to a fully different course of action with respect to the type of treatment, the type of medication that is prescribed.

It seems to me that if we are saying the standard is that someone meets conditions of dangerousness or they meet conditions of extreme need of intervention of treatment, and we know that previous treatment for that mental disorder has been successful, and that if the person isn't treated, the nature of the quality of their life is likely to decline, then we should in this section be holding them to the same standard that it is at least apparently the same mental disorder.

Mrs McLeod: I support the amendment. I appreciate the fact that Ms Lankin has given it this careful attention. I would challenge the reasons for having the "similar to" in the legislation clinically, and I don't pretend to be a psychiatrist. My background is much more limited in terms of having been briefly a mental health professional, but I don't understand clinically how you can have something which is similar to. Recognizing a degree of imprecision perhaps, nevertheless a schizophrenic is not a manic depressive, and a manic depressive is not a psychopathic personality.

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I don't understand why you would include this kind of latitude as almost a catch-all, because this legislation isn't intended to be catch-all legislation. It's intended to be very narrowly targeted to the population that can be helped. Surely "the same as" has to be there as one of the protections. The value of that is lost as soon as you add the "similar to," because instead of narrowly defining the target population with "the same as," you've broadened it to be catch-all with "similar to." Clinically, I don't think it stands the test.

Mr Patten: I just wanted to underline that as well, given the other criteria, subsection (c). We had this discussion around "let alone apparently," which sounds like a fairly loose "well apparently." I'm told and advised that legally it has a bit more of a definitive connotation than what I may take it to mean.

I would likewise like to say that we're talking about people who have gone through a similar thing, and one thing I think you may find in the literature from psychiatric assessments is that there is very often a fingerprint pattern to continuing episodes. There is a similarity, almost a repeating of a similar pattern, behaviour, reaction to etc, acting out. But if you add the corollary of "from a mental disorder that is similar to the previous one," it opens up the worry that it's not the same thing. We may be talking about a completely different diagnosis than what has been applied to this particular individual before, so in that sense, not hearing any rebuttal to what this would do to enhance things other than open up things, I don't think it's necessary, and the statement should stand on its own and finish with "for which he or she has previously received treatment."

Mr Clark: I'm not a psychiatrist, either, but we did have to rely on the input of the OMA and the OPA in the drafting of a number of different clauses. They have told us that the specific wording itself is meaningful in clinical terms. They have raised the issue with us that "similar to a mental disorder" is appropriate, because psychiatric diagnosis is not sufficiently precise or without dispute to allow practitioners to agree that a relapse with similar presenting symptoms is the identical illness for which a treatment was provided in the past. I'll pass it over to legal counsel perhaps to expand on why we did what we did in terms of the clause. Gilbert?

Mr Gilbert Sharpe: We actually started with "the same mental disorder." We then went to "apparently the same mental disorder." We talked to psychiatrists and they pointed out a number of things. First was the multiple diagnoses individual, that you might have someone who is hospitalized for one illness at one time and for something similar to, but not the same diagnosis, the next. They also were concerned that the diagnostic categories and the DSM-IV, if you look at that, it's somewhat different from the DSM-III, and the DSM-V, in turn, may be different again. Given this legislation is going to be around for a long time, what may be seen as a diagnosis today may change tomorrow. It might be similar to, but not the same. So it was advised that we'd better build more flexibility into it.

Ms Lankin: I appreciate that a certain section of the psychiatric profession that was involved in consultations recommended this. Again, in consulting other parts of the psychiatric profession, not all see the need for that particular additional flexibility. Having put the word "apparently" in, and given that these things also have common language interpretation, a mental disorder-embedded in language that talks about having received previous treatment, physical deterioration, showing clinical improvement from that treatment-surely the ability, or the willingness, of a doctor to either refer for assessment or actually sign committal papers is not going to hinge on the fact the DSM-V, whenever it comes out, has changed the name of the diagnosis or the understanding of it.

I realize why certain parts of the profession seek the greatest flexibly possible. I realize why those who are patients and who call themselves survivors of the system seek to have the greatest protection and clarity possible. These things do end up in the courts and do end up being challenged in the courts.

I think it is unreasonable to provide the kind of flexibility that allows someone to say: "Well, it was not only apparently the same, or even if it didn't meet that test, it's similar. Aren't they all similar?" That to me provides too great a flexibility in the pendulum swing striking balances here. It is interesting, the progression you went to, from "the same," to "apparently the same," to "apparently the same and similar to." I think you went one too far and I'd ask you to step back from that.

The Chair: Any further statements? Seeing none, I'll put the question.

Ms Lankin: A recorded vote, please.

AYES

Lankin, McLeod, Patten

NAYS

Clark, Dunlop, Spina, Wood

The Chair: The amendment is lost.

Ms Lankin: I move that clause 15(1.1)(d) of the Mental Health Act, as set out in subsection 3(2) of the bill, be amended by striking out "or is likely to suffer substantial mental or physical deterioration or serious physical impairment."

This and a number of similar amendments follow on the amendment two times ago which was defeated. We'll simply read it in the record and suggest that we move to a vote.

The Chair: Any further debate? Seeing none, I'll put the question.

All those in favour? Opposed? The amendment is lost.

Mr Clark.

Mr Clark: You're at number 18?

The Chair: Yes.

Mr Clark: My suggestion here is that we've got two motions that are identical, so we might stand down on 18 and refer to the NDP for 19.

The Chair: We won't stand it down; you simply don't move it. We'll move on to Ms Lankin.

Ms Lankin: This is a very generous attempt of Mr Clark to make me feel happy that I get at least one amendment passed today.

Mr Clark: I can't win.

Ms Lankin: No, I said it was very generous. I even said on the record that it was very generous.

I move that clause 15(1.1)(e) of the Mental Health Act, as set in subsection 3(2) of the bill, is amended by striking out "apparently."

Again, in my ever ongoing attempt to bring clarity to things here, this particular section is contained in the new criteria in the legislation for a physician to find that someone meets the criteria to be referred for a psychiatric assessment.

In clause 3(2)(e), the bill sets out that the person apparently, "is incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained."

The point I have made with respect to this is that health care practitioners, physicians in particular, must, under the Health Care Consent Act and the obligation of the duty for their position, make a determination every day whether or not someone is capable of consenting to treatment. It is part of the practice of medicine. They cannot provide treatment to an individual who has not given informed and capable consent, without seeking that consent from a substitute decision-maker.

It seemed to me that adding the word "apparently" here was somehow broadening or lessening the requirement for a doctor to make a determination around capacity and that was inappropriate, and I think the government has agreed with that.

The Chair: Any further debate? Seeing none, I'll put the question.

All those in favour of the amendment? Opposed? The amendment is carried.

Shall section 3, as amended, carry?

All those in favour? Opposed? Section 3, as amended, is carried.

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Ms Lankin: I move that clause 16(1)(f) of the Mental Health Act, as amended by subsection 4(1) of the bill, be struck out and the following substituted:

"(f) serious physical impairment of the person within three months."

I've made the points with respect to this amendment under a previous amendment, so I just suggest that it could be put forward to a vote.

The Chair: Any further debate?

Seeing none, all those in favour of the amendment? Opposed? The amendment is lost.

Ms Lankin: I move that subsection 16(1.1) of the Mental Health Act, as set out in subsection 4(2) of the bill, be struck out.

In four areas of the bill we introduce new criteria for consideration with respect to either conveying a person for a psychiatric assessment or committing a person. Those new criteria affect the work of physicians, in the first instance, who may make a referral for assessments; JPs who hear evidentiary-based affidavits or testimony from people seeking to have a person sent for psychiatric assessment; police officers who attend at a scene, and there have been some changes there; and then of course the psychiatric assessment itself and the criteria for actually committing someone.

In the case of physicians, justices of the peace and police officers, we've done a couple of things differently. For physicians and justices of the peace, we've introduced a new section-the relevant one here for JPs is subsection 16(1.1)-in which we look at the state of mental health and make projections about the person's condition, the deterioration of that condition, the likely results of that, like serious physical impairment or mental or physical deterioration, the things that Mr Patten talked about in terms of bringing compassion in treatment into the consideration of the legislation.

My contention is that it is not within the professional competency of justices of the peace to make a determination on a range of these issues, about the likelihood of someone suffering from substantial mental deterioration or substantial physical deterioration in the future.

The interesting thing for me is that going before a JP is an opportunity for people to bring immediately evidence to suggest that someone is in fact a danger and someone is in fact going to need intervention to save themselves from harm or save someone else from harm. A JP can, on the basis of an affidavit, make a determination on the basis of evidence. If someone credibly presents that an individual has threatened, has pulled a knife, has pulled a gun, has said certain words and threatened themselves or someone else, I think a decision can be made around that in the context of the legal system.

To ask a JP to base a decision on someone's evidence that the person is likely to suffer significant or serious-sorry, the adjectives have gone at this point in time-mental deterioration, I think, is outside of the professional capacity of that individual. Surely it is within the capacity of the medical profession, and that's where we should seek to ensure that a person is getting treatment, that a person is going to be conveyed for an assessment.

We don't have this kind of language with respect to the police. We expect they will, on the basis of reasonable and probable grounds, come to a determination that there is a danger test that has been met and convey the individual to a hospital or a facility for an assessment.

I don't believe that the JP is significantly different from the police officer in terms of the court system and the justice system. The individuals who should use these new criteria around the physical or mental deterioration of an individual giving rise to a cause for psychiatric assessment or a psychiatric involuntary committal should remain within the medical profession.

Mr Patten: I think it's a good argument in terms of the difference between the police and the JP. Even if that section were not in there, the JP could follow through and it would require some sensitivity. But I think what it does do with the JP is put on the record something that can be contestable or is accountable, number one. Number two is, can I ask if there is any special training for JPs in terms of knowledge of this act and sensitivity to psychiatric conditions?

Mr Sharpe: Actually, when the act was amended years ago, in the late 1970s, we worked with the chief judge to run training sessions for the JPs in the different categories-A, B, C, D, whatever. Certainly in those days only ones who had some special training on mental health and process were permitted to do this. I don't know what the current situation is with JPs; however, it's our intention to target them, along with the police and others, in terms of their responsibilities and accountabilities under the act.

Mr Patten: I support leaving it in, frankly, because I don't see it doing any harm. On the other hand, I appreciate Ms Lankin's argument. For the police, at least they have a responsibility as peace officers for someone whose behaviour-whether it's a nuisance, contravening the law, threatening others or whatever, they at least have that to fall back on. That's why it's not there for peace officers, because it's not a medical assessment; it's a behavioural one, dealing with their civil behaviour.

If this one, for example, were for JPs who had special training, then I think that would be very helpful and I could support it even more. If it doesn't, then I would have to defer to Ms Lankin and say, why would you leave it in for another non-medical officer to participate in this when they don't have the training?

Mr Clark: Just a couple of things I'd like to put into the record: One is the difficulty families have in terms of access in rural areas, and perhaps even sometimes getting their loved one to a physician. Clearly they can articulate that there's a concern and they can present evidence which is sworn in before the JP, as I understand it, and the JP can then make a decision based on that. The concern I have is that, again, if you're sitting in a situation where a family can't get someone to a physician, or if you're sitting in a situation in a rural community, I think we should have that latitude. I hear what Ms Lankin is saying, but the JP is simply issuing an order for an examination, as I understand it. There are safeguards built into the system in terms of rights advice at that point also.

Ms Lankin: I just want to make sure it's clear on the record what we are talking about in terms of this particular section.

"Where information upon oath is brought before a justice of the peace that a person within the limits of the jurisdiction of the justice,

"(a) has previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in serious bodily harm to the person or to another person or substantial mental or physical deterioration of the person or serious physical impairment of the person; and

"(b) has shown clinical improvement as a result of the treatment,

and in addition based upon the information before him or her the justice of the peace has reasonable cause to believe that the person,

"(c) is apparently suffering from the same mental disorder as the one for which he or she previously received treatment or from a mental disorder that is similar to the previous one;

"(d) given the person's history of mental disorder and current mental or physical condition, is likely to cause serious bodily harm to himself or herself or to another person or is likely to suffer substantial mental or physical deterioration or serious physical impairment; and

"(e) is apparently incapable, within the meaning of the Health Care Consent Act, 1996, of consenting to his or her treatment in a psychiatric facility and the consent of his or her substitute decision-maker has been obtained,

"the justice of the peace may issue an order" for assessment.

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This is a new clause in addition to the standing clause that exists in the legislation which deals with bodily harm to oneself, to another person or serious physical impairment to the individual.

I still put forward that what we are asking a judge to make a decision on, based on reasonable cause to believe, is outside of the professional capacity of the individual. I am very sympathetic to what Mr Clark says, that it is not always possible to get an individual to a doctor to have an assessment and have the doctor be able to make this determination. But surely, where a doctor isn't involved, it is then a more urgent state of condition that should allow us to invoke clauses of apprehending someone and taking them to a psychiatric facility.

I would even be somewhat placated on this if we had a provision that the family had to go to a doctor, had to prepare all the information for a doctor, and the doctor had to at least provide an opinion, not only from seeing the person, but based on what they've heard, that this being true they would issue a form 1 to convey someone; so that the JP has some advice from a medical professional who's been able to, with medical expertise, question the family and get an understanding of the individual's situation. The JP then, if they find the information sworn under oath to be credible, can put those two things together and move forward.

There's no such requirement for that kind of medical opinion even in absence of having seen the individual. So I won't argue it further, but I do believe we are stepping beyond what we can even produce specially trained justices of the peace for.

Mrs McLeod: Just briefly, before the amendment, I do think this is one of the areas where only the dangerousness should be the criteria for justice of the peace involvement, and that stands in the existing act.

The Chair: Further debate? Seeing none, I'll put the question.

All those in favour of the amendment? Opposed? The amendment is lost.

Ms Lankin: I move that clause 16(1.1)(a) of the Mental Health Act, as set out in subsection 4(2) of the bill, be amended by striking out "or substantial mental or physical deterioration of the person or serious physical impairment of the person."

My comments with respect to this are already on the record.

The Chair: Further debate? Seeing none, all those in favour of the amendment? Opposed? The amendment is lost.

Ms Lankin: I move that clause 16(1.1)(d) of the Mental Health Act, as set out in subsection 4(2) of the bill, be amended by striking out "or is likely to suffer substantial mental or physical deterioration or serious physical impairment."

The same rationale; the wording here is slightly different than in the other sections, but it's really just syntax in the paragraph in which it appears. But my arguments remain the same.

Mrs McLeod: Just for clarification, we're dealing still with the section that is the appeal to the justices of the peace?

Ms Lankin: Yes, and if anything, the arguments I made around the vagueness and lack of clarity of the language are even stronger for me in this section, where you don't have a medical practitioner with the confidence to make these determinations giving consideration to the matter before them.

The Chair: Further debate? Seeing none, all those in favour of the amendment? Opposed? The amendment is lost.

Shall section 4 carry? All those in favour? Opposed? Section 4 carries.

Mr Clark: I move that section 17 of the Mental Health Act, as set out in section 5 of the bill, be amended by striking out "in a manner that in a normal person would be disorderly" in the portion before clause (a) and substituting "in a disorderly manner."

This particular amendment came up through the process of the committee. The CMHA raised concerns about the terminology "in a normal person," and I believe it was the Liberal Party that also raised similar concerns. I think the amendment speaks for itself.

The Chair: Further debate? Seeing none, all those in favour of amendment? Opposed? The amendment is carried.

Shall section 5, as amended, carry? Carried.

Is there any amendment or debate on section 6? Seeing none, shall section 6 carry? Carried.

Ms Lankin: I move that clause 20(1.1)(a) of the Mental Health Act, as set out in subsection 7(2) of the bill, be amended by striking out "or substantial mental or physical deterioration of the person or serious physical impairment of the person." My comments are already on the record.

The Chair: Further debate? All those in favour of the amendment? Opposed? The amendment is lost.

Ms Lankin: I move that clause 20(1.1)(c) of the Mental Health Act, as set out in subsection 7(2) of the Bill, is amended by striking out "or from a mental disorder that is similar to the previous one."

I want to indicate that we are now talking about the section of the act where, following a comprehensive psychiatric assessment, a physician has arrived at a conclusion that the person meets the criteria for involuntary committal. The points that I made on the record before with respect to a physician who is giving consideration as to whether the person meets the criteria for being referred for a psychiatric assessment-that amendment was defeated at that time. But now we're talking about an individual who has been conveyed to a psychiatric hospital or the psychiatric wing of a general hospital, where there has been a full, probably 72-hour assessment done. Surely at that point in time, we can live by the standard that the psychiatrist or the physician involved has arrived at an opinion that the person is apparently suffering from the same mental disorder and that we don't need to provide this kind of flexibility.

I assume that my arguments will be no more successful this time than last, but I wanted to point out that we are, in my view, at a section of the act where there is need for even greater precision and higher standards of accountability for the professional decision-making involved.

The Chair: Further debate? Seeing none, I'll put the question. All those in favour of the amendment? Opposed? The amendment is lost.

Ms Lankin: I move that clause 20(1.1)(d) of the Mental Health Act, as set out in subsection 7(2) of the bill, be amended by striking out "or is likely to suffer substantial mental or physical deterioration or serious physical impairment." My previous remarks stand.

The Chair: Further debate? Seeing none, all those in favour of the amendment? Opposed? The amendment is lost.

Ms Lankin: I move that subclause 20(5)(a)(iii) of the Mental Health Act, as amended by subsection 7(4) of the bill, be struck out and the following substituted:

"(iii) serious physical impairment of the person within three months."

This is the "imminent" versus "three month" debate that we've already had.

The Chair: Further debate? Seeing none, all those in favour of the amendment? Opposed? The amendment is lost.

Shall section 7 carry? Carried.

Mr Patten, Ms McLeod, the amendment on page 29 is out of order because section 23 was not part of Bill 68.

That takes us to-

Mrs McLeod: Just pro forma, may we ask for unanimous consent to consider opening this section of the bill?

The Chair: You certainly may ask.

Ms Lankin: Could you tell us what it is?

Mrs McLeod: It deals with the services in correctional facilities.

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The Chair: Is there unanimous consent to open up this section? Sorry, Ms McLeod; pro forma response to a pro forma question perhaps.

That takes us to page 30. Oh, I beg your pardon, it does not. It first prompts me to ask, shall section 8 carry? Carried.

That now takes Mr Clark to the amendment on page 30. Oh, I beg your pardon. I've got to be fair here, and we may get the same pro forma request and response, in that this section, as well, is out of order for the reasons given just a minute ago to the Liberal amendment.

Mr Clark: I ask for unanimous consent.

Ms Lankin: You've got nerve.

The Chair: Mr Clark has asked for unanimous consent to open up this section.

Mr Clark: The requirements for this particular amendment came to us from the OMA and the OPA. They asked for amendments regarding leave of absence provisions in the Mental Health Act to allow for a type of step down. We can get into more detail if we actually choose to debate it.

Mrs McLeod: The difficulty is that if we give unanimous consent, you're going to pass it with a majority, so this may be one where we need to have the debate before we give unanimous consent.

The Chair: I'll certainly entertain that if you wish to elaborate on your comments, Mr Clark.

Mr Clark: This is a situation where it deals specifically with the leave-of-absence provisions, as I understand it. I guess the difficulty here is that we're talking about a section but we haven't even read it into the record.

The Chair: That's right, that's correct. We allowed Ms Lankin the opportunity to speak to her proposed amendment before actually tabling it, so I think it's fair to offer you the same opportunity.

The written text is in front of each of the members if you wish to offer your rationale.

Ms Lankin: Could I ask a quick question? Just on reading, the existing act allows for a leave of absence where the intent is the person returns to the facility. This offers another option where the person has a three-month leave where it is not explicit that the intent is that they return to the facility. Is that it essentially? Is there anything more that this clause does beyond that?

Ms Schell: I'd be happy to speak to this. As Mr Clark has indicated, we were putting this forward in an attempt to respond to what we were hearing in the briefs of the OMA and the OPA and what the proposed amendment would do. Specifically, their concern was with respect to the requirement to return to the facility. If I've understood them correctly, they believe that created an artificial requirement when what this provision should be used to do would be to give a person a trial in the community to see how they would do; so that there'd be some middle ground between hospitalization and other kinds of management in the community.

In my own legal practice, the other thing I've heard about section 27 is that it doesn't seem to address the common situation in facilities where weekend passes or passes at Christmas would be the norm.

We have tried to address these issues in a number of ways, by, in subsection (1) of the proposed amendment, allowing for a pass, for a leave of absence given by the physician. But I just take you down to subsection 3. We didn't want that to be free-wheeling so that would be subject to terms and conditions set by the officer in charge of the facility.

Ms Lankin: I'm sorry to interrupt, but just to try and truncate this, as I look at the existing section and look at the amendment. Subsections (1), (3) and (4) are all not identical wording but the exact same intent of what is in the existing bill. What's new here is subsection (2), that there could be a leave without the explicit intent that the person return. Is that correct?

Ms Schell: That's correct, but I would just draw your attention to subsection (3). Presently in the act it just talks about the leave being subject to whatever terms and conditions the officer in charge sets. In order to make this, hopefully, a reasonable process, we've also put in that the attending physician would be subject. Otherwise, you're perfectly correct.

Mr Patten: I think it clarifies, because it now provides the option. We know the consent board in the past has turned down the use of that vehicle. If indeed it is a usage for a possible early test-the commitment is that there's still a bed in the hospital for this individual in the facility-and that it is within a very specific time frame of three months, then I would support it. I think it would be helpful, whereas there is some contestation at the moment, I understand, about the use of section 27.

Ms Lankin: Just one more question. I'm inclined to give consent and actually to support this. One thing that does concern me is that the existing language makes it clear that the leave of absence be a "period of not more than three months." The change here indicates a "designated period," but not more than three months. It includes a weekend, a week, a month; it doesn't include six months. It seems to me that while it might be reasonable to have someone come back and to have this provision renewed, to have someone on some kind of never-ending probationary condition in release from hospital is a bit problematic. Could you explain the reason for doing away with the actual specified time frame of three months? That's not what I heard being brought forward from the profession. It was more the concern about the restriction of the language, that there's an intention that the patient return to the facility.

Ms Schell: I may be misunderstanding the question. I believe what the Mental Health Act presently says is "for a designated period of not more than three months." We were preserving that and only taking out the requirement that there be an intention that the person return. I know I'm not responding very well because, I'm sorry, I don't quite understand the question.

Ms Lankin: I'm looking at the language in the government motion: "The attending physician may, subject to subsection (3), place a patient on a leave of absence from the psychiatric facility for a designated period, if the intention is" for them to return. Subsection (2) is the same, "for a designated period of not more than three months," but it doesn't-

Ms Schell: You're referring to subsection (1)?

Ms Lankin: Yes, which is a change from the existing-

Ms Schell: I'm sorry, I was still preoccupied with subsection (2). You're quite right. What we're trying to capture with subsection (1) is this idea that a person can be permitted to have a pass for the weekend, for some family purpose or over a religious holiday. We're trying to include the idea that it's OK to allow people to have passes, which, as I understand it, is common practice in departments of psychiatry and in psychiatric facilities. The legislation doesn't presently directly address that and it causes some confusion in practice, as I understand it.

Ms Lankin: I'm sorry, the existing language is "of not more than three months." A weekend falls under that and, as you say, that's actually common practice.

Ms Schell: The difficulty, I think, is that in practice those decisions are made by clinical teams working directly with the patient rather than the chief executive officer of the facility. The current provision limits leaves of absence to those that are granted by the officer in charge. That has pretty serious practical implications when you're talking about an institution like the Toronto General Hospital. That provision is typically not used for passes.

Ms Lankin: But, Diana, I understand the change to "the attending physician." We did hear that, particularly from the hospital-based psychiatric departments. That's where the decision is essentially made and it's really bureaucratic to have to run up and get someone else's signature. I'm questioning why in subsection (1) we're dropping the reference to "of not more than three months." My concern is that it is inappropriate, where the intent is explicitly under that section that someone return to the hospital, to have some kind of ongoing leash on someone six months or 12 months into the future. There needs to be a review and some finality to that. I just don't understand the dropping of the three-month reference.

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Ms Schell: Under subsection (1) frankly we had not anticipated that it would be used for lengthy absences. We were thinking more in terms of weekends. Then you get into the debate of, are we talking about 48 hours or are we talking seven days? We didn't anticipate three months. We thought the longer absences were more appropriately left with the officer in charge, but the day-to-day kind of ordering of time out of the institution was better left with the attending physician.

To cover off the concern about any possible abuse of this provision, we put in terms and conditions that would apply to the attending physician. The thinking around that was that it seemed unlikely that hospitals and their administrators would give free reign to their attending staff to have people out in the community, technically as patients but endlessly subject to some sort of leash.

Ms Lankin: I am not hugely hung up on this in terms of how it is going to be used out there. I see no need for the deletion of the words. The reference of "not more than three months" did not prohibit anyone from having a weekend pass, a special occasion pass or anything else. My concern when you change something without having thought it through is always the unintended consequences of it.

However, I think the rest of the provisions here, Mr Clark, are worth supporting and I would support your bringing them forward. You may want to take a moment yourself, once you get this on the record, to stand that down and come back this afternoon and give it some more thought as to whether you really want to change those words or not.

Mr Clark: Ms Lankin has raised a valid point. I don't see any difficulties in adding "not more than three months" right after "for a designated period" in subsection 27(1) to make it consistent with subsection 27(2). I don't see any difficulty with that.

The Chair: Let's make our amendments after we actually have unanimous consent to bring this item on the floor. If we've at least been able to frame our opinions as to whether this merits unanimous approval, I put that question. Is there unanimous agreement to consider this amendment?

Ms Lankin: Agreed.

The Chair: Thank you. Mr Clark, you have proposed-

Mr Clark: It was Ms Lankin's suggestion.

Ms Lankin: No, go ahead. Just put it forward. Why don't you read it into the record with that?

Mr Clark: It's just a question of adding, in subsection 27(1), after "for a designated period," inserting "of not more than three months."

Ms Lankin: Mr Clark, you actually have to read the whole thing into the record.

Mr Clark: I'm sorry.

Ms Lankin: Why don't you read it in with that included?

Mr Clark: I forgot we hadn't done that.

I move that the bill be amended by adding the following section:

"8.1 Section 27 of the act is repealed and the following substituted:

"Leave of absence

"27(1) The attending physician may, subject to subsection (3), place a patient on a leave of absence from the psychiatric facility"-

The Chair: Why don't you read it in with your amendment in it?

Mr Clark: -"for a designated period of not more than three months if the intention is that the patient shall return to the facility.

"Same

"(2) The officer in charge may, upon the advice of the attending physician, place a patient on a leave of absence from the psychiatric facility for a designated period of not more than three months.

"Terms and conditions

"(3) The attending physician and the patient shall comply with such terms and conditions for the leave of absence as the officer in charge may prescribe.

"Exception

"(4) This section does not authorize the placing of a patient on a leave of absence where he or she is subject to detention otherwise than under this act."

The Chair: Is there any further debate? Seeing none, I'll put the question. All those in favour of the amendment? Contrary? The amendment carries.

Ms Lankin, you can probably consider that one and a half amendments you've gotten so far.

Page 31, Mr Clark.

Mr Clark: I move that subsection 28(1) of the Mental Health Act, as set out in section 9 of the bill, be amended by inserting "shall make reasonable attempts to return the person and" after "order for return."

This is again something that came up during the hearings with the committee. The Liberals-I think it was Mr Patten, if I recall correctly-indicated that the police sometimes treat the authority as discretionary, and he may wish to further the comment. We had concerns about it also, and the amendment speaks for itself.

Mr Patten: I won't prolong this except to say that this was based on some testimony during the hearings, and I support this. "Reasonable attempts," I suppose, sounds reasonable. I would hope it would be more than reasonable attempts, that they would make every attempt to return the person, but that it would not be ignored. I think this addresses that issue, so that's fine.

The Chair: Further debate? Seeing none, all those in favour of the amendment? Opposed? The amendment is carried.

Shall section 9, as amended, carry? Carried.

Are there any amendments to sections 10 or 11? Seeing none, I'll put the question. Shall sections 10 and 11 carry? Section 10 and 11 are each carried.

Mr Clark: I move that subsection 12(1) of the bill be struck out.

If I may, Mr Chair, this is basically a housekeeping amendment. Bill 68 seeks to make all administrative forms approved, which is an attempt to reduce the red tape involved in terms of the forms themselves. Forms that restrict a person's liberty should continue to be prescribed forms.

The Chair: Any debate? Seeing none, I'll put the question. All those in favour of the amendment? Opposed? The amendment is carried.

Shall section 12, as amended, carry? Carried.

Are there any amendments to section 13? Any debate? Seeing none, shall section 13 carry? Carried.

If I may, given the time on the clock and given that we are coming up to a section with a number of amendments, perhaps it's an appropriate time to call a recess. Just before I do, I want to make sure everyone knows that this afternoon we'll be meeting in committee room 1, so take your notes with you, please.

Ms Lankin: I think we are making good progress and we are all attempting to move things along here. Actually, having looked at the amendments, I recognize there are a number of substantive amendments to the community treatment order provisions and another set of substantive issues with respect to basket of services and mental health advocates that will be coming up. I wonder about our ability, with all goodwill, to complete these by 6 o'clock this evening. Given that we're on page 33 and there are 80-some-odd pages, I think it's going to be difficult. I'm wondering whether the committee Chair might want to give some consideration to discussion with the government House leader as to whether or not there is another time that the committee may meet. I know there are some significant restrictions on the parliamentary assistant, myself and Mr Patten from the Liberal Party with respect to availability and coordinating of schedules. We might need to make heroic efforts to meet the government's intention of getting this bill back into the House next week for third reading.

The Chair: I'll certainly make those inquiries. Thank you. With that, we stand recessed until 3:30 this afternoon.

The committee recessed from 1159 to 1549 and met in committee room 1.

The Chair: Good afternoon. I call the committee back to order. We will resume the clause-by-clause consideration of Bill 68. Where we left off last was the government motion on page 33.

Mr Clark: Chair, if I may, on page 33: I would like to stand that down. We're trying to work on some amendments to the clause that might incorporate 9, 10 and 11 so that the preamble we're trying to deal with is actually built right into the clause. Ministry counsel is working on that, so I would like to stand 33 down.

The Chair: Is it the agreement of the committee that we stand it down? Thank you.

Ms Lankin: I agree, but I have a comment on that. The motion on page 36, an NDP motion, is significantly similar-I'm trying to quickly see what the difference might be; yes, there is a difference-to the government motion on page 33; that you took that into consideration.

Mr Clark: Do you want to stand that down too?

The Chair: Let's see if we get to it.

Ms Lankin: Just while you're doing this, asking if you would make sure that you're looking at that.

The Chair: That takes us now to the motion on page 34, a Liberal motion.

Mr Patten: I move,

(a) that subsection 33.1(1) of the Mental Health Act, as set out in section 14 of the bill, be amended by striking out "a physician may issue or renew a community treatment order in the prescribed form" and substituting "a physician may enter into or renew a community treatment agreement in the prescribed form with the person", and

(b) that section 14 of the bill be amended by striking out "issue or renew a community treatment order" wherever it appears after subsection 33.1(1) of the act and substituting, in each case, "enter into or renew a community treatment agreement", and by making corresponding changes with respect to other grammatical forms of the expression "issue or renew a community treatment order."

I think we've had this discussion already. The explanation and discussion with witnesses during the hearings and the explanatory notes in the bill emphasized that this is a medical-consensual model. Given that the community treatment order has its historical roots in a legal framework-a court order, indeed-and that this is really a medical model, it would be more descriptive to use the term "community treatment agreement."

There are other benefits to doing that. Changing the term to "agreement" takes the edge off, and for those who may feel they may be caught up in one of these draconian orders, I think they may find some solace in the fact that you're talking about an agreement. If they imagine themselves being there, they might not necessarily agree, and therefore they had a role in the process.

The other thing is that if it sounds like a disposition of the court, it seems to me that it would be a strong point in being able to answer those who were worried about rights issues that indeed we've entered into an agreement here. Insofar as not all situations are with a substitute decision-maker, but indeed a patient may be the party who makes the agreement, it truly is an agreement and therefore it would remain so.

My final comment is from Dr Elias when he was here. He said, "In my mind, CTOs should be issued only with respect to persons who lack the capacity to consent or withhold consent, as I already mentioned earlier. Making a CTO ... subject to the consent of the person who's the subject of the order is no order at all but rather an agreement."

The Chair: Further debate?

Mr Clark: When the consultations actually started initially and the next steps were under discussion, I myself at that time raised the issue of nomenclature. I had the same concerns about the terminology "community treatment order" and "community treatment agreement." There was support on both sides of the equation, and some didn't care what it was called because they were basically opposed to it, period.

We're now at the situation where, in discussions with some people from the SSO and some family members, the concern they have raised about it is that the community treatment agreement, for someone who has a substitute decision-maker making the decision on their behalf, doesn't seem to have the same weight, perhaps, and their fear is that it doesn't have the same weight with the patient they're trying to help.

The concern we have at that point in time is, does the terminology "community treatment order" take anything away from the actual act itself? No. Does the terminology "community treatment order" upset some people in the community? There's no doubt there are a few people who are upset about the terminology, but they're also upset about the legislation. Would the community treatment order help someone who is being placed with a community treatment order through the use of a substitute decision-maker? Would the terminology have more impression upon that patient versus "community treatment agreement"? At this point, the government would prefer to err on the side of caution and leave it as a CTO.

Ms Lankin: I have a couple of quick comments on this. I don't want to prolong it. It's clear where the government rests with respect to this. One of the things that concerned me about the possibility of changing the language to "agreement," although philosophically I'm in agreement with the position that has been put forward by the Liberal Party with respect to this amendment, is that when Dr Elias spoke about the fact that a CTO really should apply to someone who has been found incapable, I found that being the position I've held from the beginning. I have a difficult time believing that this is a consensual agreement-based process. I believe that in the vast majority of situations, given the criteria that have to be met, there's only a slim chance under those criteria that someone would in fact be found capable of entering into this as an agreement on their own. When a substitute decision-maker enters into the agreement on the person's behalf, there still is an element of the person therefore being ordered to participate in this. I felt that if we called it an agreement, we would be in a way whitewashing the element of this legislation which is saying to people: "You've a pretty tough option here. You either go along with this and abide by the directions here or you're going to end up inside a psychiatric facility."

On the other hand, I think there is a strong argument to be made that if we could shift this to a system of an agreement-based approach, if we could build in some of the other amendments that we have talked about and have proposed, that would really create that kind of regime in a much more supportive way. It would be the better way to go. If this amendment were adopted, along with a number of the other amendments that have been put forward, I think we would have a better piece of legislation and a better mental health system and supportive, compassionate treatment system in the province.

I will vote in favour of the amendment, but it's a moot point because I've been given to believe that the other amendments that I think are complementary to this will also be defeated. I think in the end it would be unfortunate that we didn't take this step to address the concerns that have been raised.

Mrs McLeod: I also want to speak. I think the amendment is not only appropriate, but I think it is in order with what is already in the bill. I agree with Ms Lankin that I don't think this is very often going to be used with the consent of the individual. I think where that occurs, there will be truly an agreement that won't be under this act in terms of the treatment that will be provided. I think most of the consent is going to be through the substitute decision-maker, but that doesn't take away from the fact that the substitute decision-maker in this bill has to agree to the comprehensive treatment plan or the community treatment plan. It is not an agreement to an order in the sense of one specific. There has to be actually an agreement, and therefore I think the term "agreement" is much more appropriate and implies that there is some measure of control by that substitute decision-maker as to the adequacy of the plan that's put forward.

The Chair: Further debate? Seeing none, I'll put the question. All those in favour of the amendment? All those opposed? The amendment is lost.

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Ms Lankin: I move that subsection 33.1(1) of the Mental Health Act, as set out in section 14 of the bill, be amended by striking out "To provide a person with psychiatric treatment that is less restrictive to the person than being detained in a psychiatric facility."

Mr Chair, I intend to stand this down. I would like to make one brief comment to explain to people that this is amending subsection 31.1, which we have stood down and currently wording is being developed, taking into account a number of other proposals.

The intent of this one, however, you'll see by subsequent amendment, is to remove the concept of psychiatric treatment in the community being less restrictive to the person than being detained in a psychiatric facility from the preamble or purpose clause of the treatment community order section and actually put it into the criteria for a community treatment order.

The Chair: Do we have agreement to stand down?

Mrs McLeod: Just one question.

Failure of sound system.

Mrs McLeod: In similar amendments, we've used the term "least restrictive," which was wording that was used in a number of submissions to the committee. I'm just wondering if I could ask, either from the government or from Ms Lankin or both, about their strength of feeling around "less restrictive" rather than "least restrictive," because I assume that's part of what's going into the draft.

Ms Lankin: I can answer from my perspective. I think the language you propose-"least restrictive," if it is a principle with respect to treatment in general, that the treatment offered is the least restrictive-is appropriate.

In this case, the criteria for a community treatment order, there are a number of positions. One of them currently set out in the purpose clause is that it's the purpose of the community treatment order to offer treatment in a setting that is less restrictive than the institutional setting.

Mrs McLeod: Specifically in comparison to a psychiatric institution.

Ms Lankin: My concern is that to give that meaning it needs to be not in a purpose clause but in one of the criteria, so that the person actually has the opportunity to challenge that and to say, for example, "This type of medication is more restrictive to me in my life than being in an institution." It's a challengable aspect of the committal criteria.

The Chair: Did I understand earlier you're going to pursue the same approach with 36?

Ms Lankin: Yes, I would read it into the record and stand it down.

I move that subsection 33.1(1) of the Mental Health Act, as set out in section 14 of the bill, be struck out and the following substituted:

"Community treatment order

"33.1(1) To provide a person who suffers from severe mental illness such as schizophrenia with a comprehensive plan of community-based treatment that is less restrictive than being detained in a psychiatric facility, a physician may issue or renew a community treatment order in the prescribed form if the criteria set out in subsection (2) are met."

Again, the exact wording here is dependent on what happens with my earlier amendment and with the government's and the Liberal amendments. So I will stand this down.

The Chair: Number 37, Ms Lankin.

Ms Lankin: I move that section 33.1 of the Mental Health Act, as set out in section 14 of the bill, be amended by adding the following subsection:

"Less restrictive treatment

"(1.1) For the purpose of determining what constitutes less restrictive treatment under subsection (1) with respect to a person for whom a physician is considering issuing or renewing a community treatment order under subsection (2), a physician shall have regard to the person's opinion as to what constitutes less restrictive treatment for him or her."

If I may, I ask to stand this down in light of our earlier discussion.

The Chair: Seeing no dissent, it's stood down.

Number 38.

Ms Lankin: I move that clause 33.1(2)(a) of the Mental Health Act, as set out in section 14 of the bill, be amended by striking out "three-year period" in the portion before subclause (i) and substituting "two-year period."

Mr Chair, there are a number of amendments to specific clauses here that I will be addressing. If you will bear with me, let me get the actual language from the bill.

In 33.1(2), the language talks about physicians being able to "issue or renew a community treatment order under this section if ..." and in part (a) it's "during the previous three-year period the person,

"(i) has been a patient in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that three-year period, or

"(ii) has been the subject of a previous community treatment order under this section."

Then it goes on to a number of other criteria.

There actually appears to be one amendment missing here. The intent of this amendment is in both section 2(a): to reduce the three-year period to a two-year period; and in 2(a)(i): the reference to a person having been in a psychiatric facility on two or more separate occasions or for a cumulative period of 30 days or more during that two-year period. There should be consistency.

The Chair: We will find that on page 40, will we not?

Ms Lankin: Is it? OK. It's just out of order. Sorry.

Those two, you see, both come together. You'll also note that in a subsequent amendment we talk about making the occasion in a psychiatric facility as being "involuntary."

A couple of things are going on through this section. We want to reduce the period of what we were looking at in the past from three years to two years. We want to say that what counts towards the cumulative time period are involuntary committals. We think it is entirely inappropriate and will have a dampening effect on an individual's willingness to go and seek voluntary treatment if they know that the clock is starting to click from that day towards a potential utilization of that past experience towards supporting criteria for the issuance of a community treatment order.

I believe, though I'd need a moment to go through it, that there is also a reference to changing the cumulative period of 30 days.

In looking at the experience in other jurisdictions, there is mixed experience as to what standards are relied on. The Saskatchewan legislation, which has been much referred to by the government as a model for this, has the more restrictive, backward-looking time period and cumulative experience that I am proposing we look at here in Ontario.

The Chair: Further debate?

Mrs McLeod: As Mr Clark and Ms Lankin will be aware, we had also proposed virtually an identical amendment. In subsequent discussions and in consideration of what our bottom line is and the art of the possible, perhaps, in the negotiation of this, we have dropped our amendment. Where we had looked for the two-year period rather than the three-year period, the 60 days rather than the 30 days, we've hung our hats on trying to get it as involuntary admissions, which was really a bottom line for us. Nevertheless, I support-as we did originally-the Saskatchewan recommendation.

One of the concerns I have had since we considered that was a statement that was made to the committee that it might be very difficult in Ontario, given the state of psychiatric beds, to actually accumulate 60 days.

The Chair: Further debate?

Mr Clark: To start off in terms of clarifying the record, I'm not sure the government has actually referred to Saskatchewan as the model that we based this on. We based it on the Manitoba model. Saskatchewan has come up in the hearings, however.

In the briefing that we had with the OMA and the OPA and in the discussions within the consultation itself in the broader sector, I didn't hear an overwhelming sense that we should be changing the time frame, the two years or three years. From the government's perspective on it, I'm not sure exactly what it adds to the bill as opposed to what it actually may take away from the patients in terms of the history. Three years versus two years: When you're dealing with someone who is seriously mentally ill, having a psychiatrist or a family physician who has an opportunity to look at three years worth of history is an important component, as opposed to limiting it to two years. I hear the concerns; we don't agree, however.

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Ms Lankin: If I may, nothing in this clause would prohibit a physician from looking at however long a history of medical involvement a patient has. The history for 10 years or more would be relevant to making a determination whether the patient met a number of other criteria in terms of the repetitive nature of the disorder, the treatability of the disorder, the success of the treatment of the disorder, a number of those other criteria that would come into effect.

Because we are dealing with a bill that purports, in very appropriate ways, to circumscribe people's civil liberties, we have to ensure that we are doing that in a way that is both consistent with the intent to get services and treatment to people who are hard to treat in an effective way, as well as to protect the rights of those individuals. How long do we need to look back? If we are talking about 5% of the population of people with mental disorders, those who are most seriously mentally ill, those who have a record of repeated institutionalization, with treatment by medication that's successful and a record of going off that, it seems to me that history is clearly set out over a long period of time. The active period with which we can look to see whether the person is appropriate for a CTO at this point or not should be, I believe, circumscribed in terms of how far back in a person's history one can look. Other than the OPA and the OMA, I heard no generalized support for the longer period of time; not just the three years being longer, but the 15 days being a shorter, cumulative test, and the issue of the admissions having been voluntary versus involuntary. I didn't hear an overwhelming support for that, as you're saying you didn't hear an overwhelming problem with it during your consultations.

I put that forward. I think this is a balancing act, and to my way of thinking this reaches a better balance.

Mr Clark: It is a balancing act. As a matter of fact, we had the OPA and the OMA lobbying that we remove the need for hospitalization from it, period; that it shouldn't even be there. They had concerns about that. We are trying to do the balancing act. It's a question of the extent to which we do it in terms of timing. Again, I have to go back to all the rights advice that we've built into the system itself, into the act. We agree to disagree, I guess, at this point.

The Chair: Further debate? Seeing none, I'll put the question on Ms Lankin's motion. All those in favour? Opposed? The motion is lost.

A Liberal motion on-

Mr Patten: It's part of the same argument. The argument was, obviously, that if we're talking about two visits-I should read the motion, right?

The Chair: Could you read the motion?

Mr Patten: I move that subclause 33.1(2)(a)(i) of the Mental Health Act, as set out in section 14 of the bill, be amended by adding after "a patient in a psychiatric facility" in the first and second lines "involuntary basis."

This would not just mean a minimum of two or more separate visits to a facility, which I think would act as-did we lose our key decision-maker here?

Mr Garfield Dunlop (Simcoe North): Can we take a recess?

Ms Lankin: We can continue. He could give instructions, couldn't he?

Mr Dunlop: I'm just wondering if we can carry on. He's going to be back in a couple of minutes.

Mrs McLeod: We feel very strongly about the implications and we would really hope that the government would be prepared to consider it. I'm not sure that it can be considered in the absence of Mr Clark.

The Chair: If the committee's agreed, we'll take a two-minute recess.

Mr Dunlop: Better make it a five-minute recess.

The Chair: The committee stands recessed.

The committee recessed from 1615 to 1618.

The Chair: I will call the committee back to order. Mr Patten, I believe you were in the middle of your explanation.

Mr Patten: By the way, the record should read "on an involuntary basis." I may have said "on a voluntary basis." That may be revealing my background somewhat.

First of all, I think an involuntary basis is not a precedent. It is in other jurisdictions' criteria. Secondly, it would assure those who voluntarily may go to a facility that there is not this quota system, and all of a sudden: "Oh, here I am. This is going to be chalked up. Now I better be careful if I go again because I could be subject to one of these awful orders."

I was trying to think of a situation in which an individual might go voluntarily. The only argument is, if someone goes voluntarily and for some reason something happens at a facility, then there's an opportunity to place someone on a CTO. Now if it's just the individual and they agree, then it need not be a CTO. If a person walked in voluntarily, if they voluntarily agreed to a particular plan-that happens all the time. But the number of people who might fall into a category where someone voluntarily walks in and then may become subject to this, I find difficult to appreciate, frankly.

Ms Lankin: I want to speak in favour of this amendment. I want to point out that the next amendment we would be dealing with does the same thing with slightly different wording. It replaces subclause (i) and indicates that a person "has been involuntarily admitted to a psychiatric facility on two or more separate occasions." That amendment also goes on to change the cumulative period from 30 days to 60 days over the two-year period. I've spoken to that earlier.

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I think it's critically important that we pass this amendment to make it clear that these admissions are on an involuntary basis. I want to point out that if a person for some reason becomes an appropriate candidate for the kind of comprehensive community-based treatment that is thought of with respect to a community treatment order and is unwilling to participate in that or is incapable of making that decision, I cannot imagine a circumstance where they wouldn't meet the criteria for involuntary committal. All that has to happen is that an assessment has to be done that they meet the criteria for involuntary committal. They can then be released under the amendments we passed earlier today, where a person can be released on a temporary release up to 30 days without there being an intention that they come back, with conditions attached. There is a clear mechanism contained within the legislation to deal with that circumstance.

The downside of proceeding with a clause that has the clock ticking on cumulative admission time that includes voluntary time is the chilling effect it will have on the community. All members of this committee have heard very clearly from those in the psychiatric patient community their doubts, their fears and their concerns with respect to this legislation. We have heard that the existence of this provision of community treatment orders will drive people underground. To think that someone reaching out to get help on a voluntary basis is going to question whether or not to do that as a result of this language is horrifying to me. When we have another mechanism to deal with any individual who presents on a voluntary basis-and then we need to find a way to get them to community treatment order; there's another mechanism to do that-there can be no reason to put in place a barrier to someone seeking voluntary treatment, given the enormous consequences that it produces in their lives.

Whether you or I think it's a reasonable assumption that someone would think, "The clock is ticking and if I go voluntarily this may mean I'm put on a community treatment order in the future," is irrelevant. We have heard clearly from the people involved that that is what the response of the community will be.

Unless I can hear a clear reason why this clause is necessary here, given what I've pointed out in terms of the temporary leave provisions that allow us to deal with this in another way by finding someone eligible for involuntary committal and then using the leave provisions, I believe this is a grave mistake and it will have significant consequences in the community.

Mrs McLeod: I just want to underscore that. I would really ask the government to look at this in terms of everything they believe about the purpose of this act. The whole idea is to get people into treatment sooner, before they suffer deterioration.

I don't think there is any question at all that if you go into a psychiatric hospital for an assessment because you're at an early stage of a psychiatric illness and you want to get treatment, you go in to get that assessment in order to try to get the treatment early, while you're still competent to make that decision yourself, knowing that just going voluntarily to hospital to get that assessment would start the clock ticking on what could be seen to be a coercive order by that individual will deter people from going in voluntarily and seeking early treatment.

As Ms Lankin has said, I don't see any downside to this. This is not a trap to change the nature of the bill. It's not in any way going to affect getting treatment to those who are not able to consent to treatment because of the nature of their illness. It's just an attempt to make sure that people don't hesitate to get treatment voluntarily while they're still capable of doing that.

I would really make a plea, in the interests of just the purpose of the bill, which is to get to people sooner, that this amendment be considered.

Mr Clark: The concern the government continues to have with regard to the situation is that if you have a patient who is seriously mentally ill and they have been voluntarily bringing themselves in for committal-

Mrs McLeod: Voluntarily?

Mr Clark: -voluntarily, and over a period of time their mental illness deteriorates to the point where now a community treatment order may be something that's plausible, they wouldn't meet the criteria because they voluntarily committed themselves. So we actually remove a potential component that can help that particular patient.

Moreover, the point that has been made that some people would say, "I'm not going to voluntarily commit myself because this could be used against me at a future point in time," that argument could be used today. People who voluntarily commit themselves today-could not doctors turn around and point to that voluntary commitment, and when they deal with the committal process itself, could not the family bring up that history, if you're dealing with this?

Mrs McLeod: Not unless they were dangerous to self or others.

Mr Clark: My point still stands. A voluntary committal could still be used right now. I think it's a bit of a red herring. I understand what you're saying, but I think it is a bit of a red herring because it could be used currently against that mentally ill patient. To err on the side of caution and to eliminate that potential by putting in "involuntary" cuts out an entire segment of the population that may at some point in the future need that component. We really feel strongly about it, that it weakens it; it doesn't strengthen it.

Ms Lankin: There are three points that I wish to make. First of all, the individual you began referring to who seeks voluntary treatment and then at some point in time becomes appropriate for a community treatment order because of the deterioration of their condition, I'd be interested in your estimate of the percentage of the population we're talking about who would at that point in time refuse to comply with a voluntary agreement in the community, given that they've been seeking voluntary treatment.

But for that very small proportion of the mentally ill population who this community treatment order regime is designed to serve, may I indicate that all you need to do is find that the person meets involuntary committal criteria, bring them into the facility and release them under the provisions we adopted earlier, the temporary leave provisions with conditions, and the conditions can be exactly the same as the community treatment order.

What you've just dismissed by the last comment you made-and it's the third point I want to address-is that what you risk is the chilling effect on that community. It need not make sense to you or to any of us on this committee that this provision has a chilling effect on the individual. For you to say that any voluntary admission already counts towards things, there is no law, there is no clause in this bill that counts up voluntary admissions and says, "You've now met some criteria where the system can do something to you."

The population we're talking about, a very vulnerable population, has expressed clearly at these hearings and on many other occasions that there is suspicion of the system due to their own real-life experience in the system. They have concerns about meeting any threshold where power for their own decision-making is taken away from them. That population will react to this provision. There is nothing you can do additionally within the provision that you can't do under the involuntary admission and leave-of-absence-with-condition provisions that we passed earlier. What you risk is sending people underground and stopping them from getting treatment on a voluntary basis. It makes no sense to me, given all that we've heard out there. Again, in your answer, you didn't address the fact that we have other mechanisms to deal with that exact population.

If you need to check with someone else, I ask you to stand it down and check. I understand you're not going to change the time frames involved here but, for God's sake, we can't put something in place in the bill that's going to stop people from voluntarily seeking help.

Mrs McLeod: I would further ask you to think a little bit about the government's reason that you just offered, because the reason you just offered, the concern that you have about making this involuntary, negates the significance of the bill you're passing. You said: "They can do this now. Why wouldn't this be a deterrent now?" That fails to take into account the sweeping changes this bill represents in terms of the potential for involuntary commitment.

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Mr Clark: With respect, I didn't say that. What I stated was that if someone voluntarily admits themselves now, could that not be used against them? Wouldn't they have that very same fear under the current act-

Mrs McLeod: No, no.

Mr Clark: -that at some point in the future it could be a committal process?

Mrs McLeod: That's my point exactly. They don't have that fear now because the criteria, first of all for committal to hospital, are so much narrower. That's why you've brought the bill in, to broaden the criteria for two things: one, for admission to hospital. This particular clause doesn't speak to that. This is committal for a whole new range of treatment. This is for a community treatment order. That's frightening for people. We heard that over and over again. They don't know what to expect of this.

Right now, the only way in which you can be involuntarily committed to anything-and "anything" is hospitalization under current law-is "imminent danger to self or others." The narrowness of that is the whole reason for proposing the bill. Again, I just say with respect to the sincere-and I believe it is sincere-attempt on the part of the government to reach a vulnerable population, you don't want to offset that by putting in something which would deter people from getting that very same treatment at an earlier stage voluntarily. I honestly don't believe you miss anybody by putting the term "involuntary" in. All you do is preclude the possibility that people will be deterred from getting treatment early.

The Chair: Mr Clark, I believe a request has been made to defer that. Do you have any interest in that?

Mr Clark: No, the government is firm in their position.

Mr Patten: So that means the government isn't prepared to debate it, I suppose. With the passage of the leave arrangement-which I think was a good one, by the way, because it added another tool-it immediately gives you the option of a voluntary person going in for whatever reason-I'm trying to find this illusionary example, by the way, because it doesn't make sense; I can't think of a circumstance. But let's say it did happen: Someone deteriorates and they say: "There's some stability going on there. How about taking a look at a leave arrangement?" There's one. It doesn't work out and they're brought back. There's two. The eligibility for a CTO is right there.

I say that in terms of offsetting the broader community and the possible-what's the term?

Ms Lankin: The chilling effect.

Mr Patten: The chilling effect, but they would then be deterred from using treatment programs they otherwise might willingly use for the fear of being counted in this other category, in this other stream. There is now in the bill, with the passage of the leave arrangement, a clear opportunity for that very tiny, tiny group-I can't even think of an example-of the much, much larger group that we may deter, for example. I offer that as an explanation.

Ms Lankin: Mr Clark indicated that the government's concern was with respect to an individual who may have, on previous occasions, voluntarily sought admission and treatment in a hospital and who found themselves in a deteriorated state and the appropriate subject of a community treatment order but for not having the criteria of past involuntary admission. I would like Mr Clark to explain to me why that individual is not caught by the provision of having an assessment for involuntary committal, being committed and being released under conditions under the new leave provision.

Mr Clark: They may be caught. I'm not saying they will; I'm not saying they won't. They may be caught in it. I'm stating, and I stated very clearly, that my concern is that if you have someone who is voluntarily committing themselves-and with respect, we did debate this in committee; a number of times it has come up. If they're voluntarily committing themselves and there is a deterioration but they may not meet the requirements for an involuntary committal, how do we deal with that situation at that particular point in time, if there's a deterioration of their health, where their family physician sits down and says, "We could do a community treatment order," based on what is permitted under this, but because they were not involuntarily committed, under your amendment-

Ms Lankin: If I may, Mr Clark, in clause 33.1(2)(c) we talk about "within the 72-hour period before entering into the community treatment plan, the physician has examined the person and is of the opinion, based on the examination and any other relevant facts ... that,

"(i) the person is suffering from mental disorder such that," and it goes on.

The point has been made to me by the government over and over again, as I keep talking on that section, about the need to at least make sure the individual meets involuntary committal criteria, that meeting the criteria for referral for assessment is evidentiary-based and higher than after the 72-hour assessment.

Contrary to what you've been arguing to me on one of my future amendments, to suggest that this person, who has sought voluntary treatment, who has now deteriorated to a point where they would be a candidate for a CTO but for the fact that if we change the legislation they haven't met the cumulative involuntary admission criteria, would not now meet the criteria for involuntary committal and be able therefore to be released on the community leave provision with conditions which could be exactly the same as the comprehensive community-based treatment plan contained in an order of conditions for a leave provision, makes no sense to me.

I'd like you to please tell me how any one individual falls through the cracks on this, and if you can, then maybe we all need to revisit this, but if you can't, I think you have to take seriously the deterring factor that we are raising with you on behalf of a population that has expressed it so clearly. It is real for them. It will happen for them. If we can avoid that, then we are helping to get more treatment to more people, which is the intent that all of us have.

Ms Schell: I would just like to highlight some of the things Mr Clark has already said in response. I believe we did hear from some people making submissions that no hospitalization requirement should be included. We're hearing very passionately today that it should be involuntary hospitalization. The bill, as it's presently drafted, tries to strike the balance that serves everybody's interests best. I believe what the bill does is look at a three-year history of illness that brings the person to the point where they now meet the criteria for civil commitment.

The distinction between the CTO provisions and section 27, I think, is that while the CTO provisions are intended to facilitate comprehensive community-based services, the leave of absence provisions are much more institutionally based. The person is still tied to the facility. One of the ideas there was-for example, we heard this morning the possibility that a bed is kept for that person if they don't do well in the community. These are tools that may overlap to a certain extent, but they do different things.

Ms Lankin: I want to point out that the submissions that have been made in the past with respect to whether or not there should be any hospitalization are at this point in time a bit moot because the government has made a decision there should be hospitalization. We are now dealing with a situation in which we earlier today passed another amendment to this bill and to this act which creates the possibility for a leave of absence with conditions.

The point counsel makes with respect to those conditions not necessarily being the same or with the same intent as a community treatment order is different than the submissions made to us by the very doctors who asked for that amendment, saying that one of the concerns they had is that people in the institution who may be appropriate for being the subject of a community treatment order wouldn't be able to get there because they're not in the community. You have to be in the community and meet these criteria in order to be put on a community treatment order. They certainly envision using these leave provisions in such a manner. It may be that drafting would be better if we looked at the leave provisions and we built in some of the other protections under the community treatment order, no doubt, but clearly we are speaking of a minuscule population of an already very small population of the seriously mentally ill among the larger population of those with mental disorders.

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The downside, on the other side, of the numbers of people who will be affected by the chilling effect of this legislation and this wording and the clock beginning to tick if they seek voluntary admission surely should have more weight than the conceptual hurdle in the drafting of this legislation of the leave provision not looking exactly the same as the CTO provision when it's clear the testimony-and I think the intent of the government with respect to amending that provision was to allow for an individual to be released from hospital into a community treatment order regime where they may not otherwise be eligible for it.

Mrs McLeod: I'm just having difficulty understanding why the government "feels so strongly about this." This has been a process where the government has been more than willing to take a real look at things which would strengthen the bill. I think equally, we've been prepared to compromise on some things we think are important, but recognize the government's just not prepared to go down that road. This one just seems to be so uncompromising of what the government wants to achieve with the community treatment order; at the same time, it goes a long way to responding to the concerns we heard repeatedly at committee from people who believe the entire legislation will have a chilling effect on people getting treatment. We're not saying, "Withdraw the entire bill because it's going to deter people from getting treatment," but we're saying, "Here's one thing that can be done that doesn't impair the intent of the bill at all, that would be a significant factor in letting people voluntarily get treatment." I honestly don't understand why there's such a problem to not even look at this.

Mr Clark: With all due respect, I think it's a gross exaggeration to state we're not willing to look at it. It's been discussed a number of times in committee and I've taken it back and discussed it with the ministry and with the government. I've already stressed the concern the government has. I've stated it very clearly and articulately in terms of what the impact is. Perhaps it's a judgment call. On one side, the opposition's concern is this is going to be a chilling effect. The government doesn't believe that's the case. The government believes it's more important to have that latitude in the act to make sure voluntary patients can have access to community treatment orders. At the end of the day, we'll be debating the review process in terms of the review of the legislation and all of the rights advice. Everything's been built in.

I think it's a little bit unfair for anyone to state that we're now locking ourselves in and we're not willing to budge so we're tying things up. We have been very flexible. I've done my best to incorporate numerous suggestions from the opposition. On this particular clause, there's a difference of opinion between the government and the opposition. It's the judgment of the government that the position they've taken is not going to have the chilling effect. We may be wrong; I don't know. But the review process will help us examine the impacts of the legislation down the road.

Mrs McLeod: Just for the record, since my light's still on, Mr Chair, I haven't had this opportunity to debate with you. We have had "involuntary" in our proposed amendments from day one, from original intent. It's something we felt very strongly about. We were prepared to not push to the drafting point, even, the amendments around the time lines because we recognized the government wasn't prepared to go that route, but we've never said that "involuntary" was not something we thought was an important addition to this.

Mr Clark: I didn't suggest that.

Mrs McLeod: In all honesty, Mr Clark, I was not presenting this as opposition. There are other parts of the bill where I will present as opposition and it will be a real difference of opinion. I really thought this would strengthen the bill and would also go a long way to reassuring people who do not support the bill.

Mr Clark: I'm just stating a difference in judgment, not an opinion.

Mr Patten: This will be my final statement, because it sounds like you're stuck with a fixed position-not you personally, because I know you've worked hard on this.

What this means now, if this isn't accepted, is that a doctor, given a general practitioner who may or may not have training, can look at somebody or recommend somebody for an assessment-I don't know who is going to do the assessment-and the person doing the particular assessment can immediately make a recommendation here.

You might have no psychiatrist even in the system at all making a recommendation for a CTO. First of all, I don't see that as possible. I don't think any doctor who wasn't part of consulting with a facility where most of the expertise will be in these kinds of circumstances would want to take that liability. I just think it's an improbable possibility, but we feed that scenario to those who would want to condemn this legislation, is what I say. That's a worry.

Ms Lankin: I will make this my final comment too, because we have many other amendments to deal with. I want to indicate, Mr Clark, that it sounds like you are feeling a touch of exasperation in terms of the way in which you've attempted to work to reach consensus. I want to put on the record that in fact I believe you have worked in that way and, therefore, this intransigence is very much out of character. I suspect that means it comes from someplace other than from you.

I want to say to all the members of the committee who sat through the hearings, at a certain point in time committee members have a role to play with respect to getting to the best legislation. Sometimes that means taking a stand and going back and talking to the government, wherever in the government a decision is being made, and I think in particular this clause warrants that. I believe Mr Clark and counsel have been unable to answer the very direct questions I've put forward about who it is who would be lost or would fall through the cracks, given the leave provision we've put in place and given the stated intent of the use of that leave provision.

In a minute I'm going to ask for unanimous consent to stand this down. I urge the government members to support that and to give your support to the concept and then have a discussion with the representative from the Premier's office, or whomever-although we see one who comes in and out here regularly-because the downside risk of proceeding with this has been so clearly articulated that it is not believable to say that these committee members around this table who heard that have a judgment that something else is true. It may be that people who are not in tune with what has happened, who have not heard the submissions, who are not sensitive to the community's fears out there, believe, and their judgment is that this will not have a deterring effect. That is not the case for those of us who have sat through these hearings.

I hope you will give consideration to this, to give just a little bit more time and that this can come back later in the course of the evening. I'm going to ask for unanimous consent to stand down this amendment.

The Chair: Is there unanimous consent among the committee members to stand this down? Agreed.

That takes us to the motion on page 40.

Ms Lankin: I want to thank the parliamentary assistant and the government members for that.

I move that subclause 33.1(2)(a)(i) of the Mental Health Act, as set out in section 14 of the bill, be struck out and the following substituted:

"(i) has been involuntarily admitted to a psychiatric facility on two or more separate occasions or for a cumulative period of 60 days or more during that two-year period."

Mr Chair, given the discussion that has just taken place, I would like to stand this down.

Mr Clark: Agreed.

The Chair: That amendment is stood down. That takes us, Mr Clark, to the motion on page 41.

Mr Clark: I move that clause 33.1(2)(b) of the Mental Health Act, as set out in section 14 of the bill, be amended by striking out "care or treatment" and substituting "treatment or care and supervision."

This has become an issue of language inconsistency throughout the bill. The CMHA brought up the issue in terms of trying to make the language more consistent throughout. I think it's pretty well self-explanatory.

Ms Lankin: Just a quick question and perhaps a comment. Is there anywhere a definition of "supervision"?

Ms Schell: No.

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Ms Lankin: I won't prolong this. I want to place a concern on record-I recognize that this was recommended by the Canadian Mental Health Association. My concern, without a definition of "supervision" and what we mean here, is that it evokes for me, perhaps because of my criminal justice and corrections background, the concept of a probation order and the type of supervisory conditions that are placed on individuals as an alternative to court. That's not the way in which the community treatment order regime in Ontario is being set up. It is not the intent we've heard; it is not the US-based court diversionary or criminal justice diversionary mechanism. I put on record a concern about the continuous use of the word "supervision" without a definition being added.

I don't expect there is anything we will do about it at this point in time, but I want that clearly on the record. I believe it is an area that needs, in a review, to be highlighted for the person conducting the review, it needs to be understood in terms of the realities of how this provision is implemented and, perhaps in the future, it needs to be given fuller definition in the legislation.

Mr Patten: I would just say that I'm sure there would be different institutional cultural perceptions about supervision in the army, in the church, in corrections or in various places. My own background in the Y was that it's a very positive, supportive function of helping a group or a single person, to be a testing board, a reference point and an adviser in a sense. I just say that I think we can take that word itself to mean what we want it to mean.

Ms Lankin: Which would be a good reason to have some definition in the legislation.

The Chair: Further debate? If not, I'll put the question. All those in favour of the amendment? Opposed? The amendment is carried.

Ms Lankin: I move that subclause 33.1(2)(c)(ii) of the Mental Health Act, as set out in section 14 of the bill, be amended by striking out "for the completion of an application for psychiatric assessment under subsection 15(1) or (1.1)" and substituting "for involuntary admission under section 20(1.1)."

If I may just reference that part of the bill, if you will give me a moment. Clause 33.1(2)(c)(ii) is one of the criteria that a doctor must be of the opinion that the individual meets in order for them to be placed on a community treatment order. This criterion is judged after the doctor has had a chance, within the preceding 72 hours, to examine the individual and the doctor is of the opinion that "the person meets the criteria for the completion of an application for psychiatric assessment under subsection 15(1) or (1.1) where the person is not currently a patient in a psychiatric facility."

On a number of occasions through the hearings, I've made my concerns clear about this. It seems to me that if we are to say that a community treatment order is in fact a "less restrictive" option than being detained in a psychiatric facility-and those are the words that are used in the description of a community treatment order-then we must be of the opinion that the person actually meets the criteria for involuntary admission, "being detained"-let me use that language-in a psychiatric facility.

I have been of the opinion that it would be wrong for a physician in the field to simply be of the opinion that a person meets the criteria stated here, which is for an order to be assessed, just a referral for assessment. Through the course of discussions and amendments thus far, we have dealt with who the physician in the community will be. We have indicated that there will be special criteria put in place for training and expertise, and that these are specially trained physicians who will be capable of doing psychiatric assessments. It's also been made clear that it is not always a psychiatrist in the field at this point in time who makes the determination that a person meets committal criteria; a physician can do that, and these specially trained physicians out there, who will be the only ones who will be able to issue community treatment orders, will have the background and the capacity to make such an assessment.

I'm not proposing that a person be sent for an assessment; I'm not proposing that they be taken into a psychiatric facility. I'm proposing that the test, in the opinion of these new specially trained physicians, be that the person meets the criteria for involuntary commitment, so we can truly say that the provision of the community treatment order is designed to be a less restrictive option than being detained in a psychiatric facility.

Mrs McLeod: I am appreciative-Ms Lankin has raised this in questioning during the committee-of the fact that it doesn't require an actual assessment. But it seems to me I remember Mr Sharpe suggesting that one of the differences between the criteria for involuntary admission and the criteria for a community treatment order was that the community treatment order doesn't require that a person be incapable of making that decision. I share the opinion Ms Lankin has that most of the people who would be under community treatment orders, because of the nature of the target population not being able to access treatment because of their illness, would fall under that incapability. I wonder whether the amendment precludes the possibility that somebody could voluntarily enter into a community treatment order.

Ms Lankin: If I may, nothing precludes the opportunity for a person to voluntary enter into any kind of agreement. The point I've made before is that I agree with Dr Elias that where something is being ordered, then there isn't an agreement in place.

Ms Schell: Mr Clark has asked me to speak to this matter. I believe that what is in the criteria for the CTO is actually stronger than simply meeting the criteria for civil commitment in section 20 of the act. In section 15, the criteria for an application for psychiatric assessment actually require some behaviour in the community that is of concern, in addition to the concern about the nature of the mental disorder the person suffers from. So in addition to the mental disorder, which is in subclause (i), and if a person is in the community meeting the criteria for an application for psychiatric assessment in subclause (ii), in subclause (iii) there is a statement of the physician having to be of the opinion that "if the person does not receive continuing treatment or care and continuing supervision while living in the community, he or she is likely, because of mental disorder, to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person," which is a repeat of the committal criteria but for the requirement that nothing short of custody in a hospital will be of assistance to that person.

It's actually our belief that we've got a stronger test by requiring that the behaviour that would satisfy the criteria for an application for psychiatric assessment also exist.

Ms Lankin: In fact the language under (iii) is also a repeat of the new language in section 15. I don't find that argument weighty, in terms of the case I'm making.

The point, as succinctly as I can put it, is that it is impossible to say a community treatment order is less restrictive to a person than being detained in a facility if you are unable to say that person meets the criteria for being detained in a facility. How can you then offer this as some option? There are people who currently are referred for assessment, who meet what you're suggesting is the higher evidentiary test under the provisions for referral for assessment, who then go to a facility and do not meet the criteria for committal.

You can't have it both ways; something is wrong in the language, then. If you are unable to have a doctor say they are of the opinion that the person meets the criteria to be involuntarily detained, involuntarily committed, then it is not possible to say this a less restrictive option for that person.

Ms Schell: If I might add a point of clarification, I believe the committal criteria in section 20 do specify that the harms that are anticipated as a result of mental disorder require that the person be in custody. What we have in this part of the bill is a requirement that but for the treatment, those criteria would be satisfied, and I believe that is set out in clause (c)(iii). So with the greatest respect, I believe that concern is satisfied.

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Ms Lankin: I should learn never to debate with a lawyer, because I'm not a lawyer. But that clause remains. I'm not proposing taking away anything from that clause. That remains there. I'm also not proposing that a person be taken into custody or that they be given an assessment in a psychiatric facility. I'm proposing that the attending physician who will be issuing the CTO, who we have been told will be specially trained, will have the background and the capacity to make decisions about things like committal, is of the opinion that the person meets the committal criteria. I would be pleased if you want to say they meet the referral and the committal criteria. But short of saying they meet the committal criteria, it is to me unconscionable to be moving to a point of saying, therefore, that this person is being given an opportunity for a less restrictive treatment option than being detained because you have not reached any assessment that they could be detained under this law. It's a threshold question for me. Under this law you have to at least come to an opinion that the person could be detained involuntarily in order for the community treatment order to take effect.

Mr Clark: Just a question for clarification to Diana. If the amendment were to proceed, wouldn't it end up forcing patients to be hospitalized before they could get a CTO? Isn't that a possibility, based on the way I'm reading it?

Ms Schell: I think that would be a reasonable interpretation, yes.

Ms Lankin: Let me jump in and say I can't understand that answer. We have here language that says, in the physician's opinion, "the person meets the criteria for ... psychiatric assessment under subsection 15(1) or (1.1)."

During briefings prior to the beginning of the hearings, I put the question directly to counsel: Does the physician actually have to execute a referral for assessment under 15(1) or (1.1)? Do they have to fill out anything? Is there anything that has to state that the person is at that level? I was told by counsel, no, the physician is of the opinion that the person would meet the criteria set out there. All I'm doing now is saying that same physician-who we've been told earlier today will be capable of, and currently already does make the committal orders-is of the opinion that the person meets that criteria. It doesn't require an assessment in a facility, and it doesn't require a referral for an assessment. If the current language in the bill doesn't require a referral for assessment, which I've been told is not the case, then what I'm proposing doesn't require actual hospitalization or committal.

If the concern that there is a higher or more immediate evidentiary level in the criteria in 15(1) and (1.1) is best solved by adding both of those, that they meet both of those criteria in 15(1) or (1.1) and 20(1.1), then I think we could come to some agreement. But what no one has responded to me on is how, when you don't have any kind of opinion that a person actually meets the criteria for involuntary admission, the community treatment order can be viewed as a less restrictive option to that person being detained? The person hasn't met the threshold in anyone's opinion that they could be detained.

Ms Schell: I'll try one more time. In order to issue a CTO that's going to be in a prescribed form, that will have to satisfy, so there will be a record the physician has to make indicating that these criteria are satisfied. With respect to doing a form 1 application for psychiatric assessment, or perhaps as you're suggesting, a form 3 certificate of involuntary admission, those things are not going to happen, because once they happen, they trigger certain consequences under the act. That's why those forms would not be completed.

The point I'm trying to make, in terms of substituting meeting the criteria for involuntary commitment, is that those criteria state specifically that certain harms will result unless the person remains in the custody of a psychiatric facility and that the person is not suitable for admission as an informal or voluntary patient. The way we have addressed this in subclause (iii) is to say that but for providing the continuing treatment or care and continuing supervision in the community, the likelihood of these harms that would satisfy the civil commitment criteria exist. So what is left out of this picture where a community treatment order is issued is this opinion that nothing short of the person being in custody in a psychiatric facility will satisfy the concerns that are addressed by the CTO. That's why I would be concerned by having the physician have to say that the criteria for involuntary admission are satisfied, because that includes custody in a psychiatric facility. While we've stopped short of saying that in subclause (iii), the rest of the criteria are there.

Ms Lankin: Every time you answer, I have to say that I remain unconvinced that the person would be compelled to go to a psychiatric facility, which was Mr Clark's question. Your answer was that you believe that would happen, or there is a great possibility that could happen.

Subsection 15(1) talks about the referral assessment being as a result of this and, quite frankly, you don't make the parallel argument. However, in the interests of time, and I understand that I have lost this point, I believe strongly that you will find-and I have spoken to heads of psychiatry departments who have told me over and over again of people who are sent on referrals who, in the opinion of the physician, meet the criteria for a referral, who are not committed because the psychiatrist does not believe they meet the committal criteria. To think we are going to take away someone's liberty in the community when we can't even, in our language here, compel a physician to come to an opinion first that the person is suitable to be detained in a facility, strikes me as quite an amazing gap in the logical progression of how these options should be made available to people. That's all I'll say.

Mrs McLeod: For the record on this, I do want to note that section 20 of the act, which is referenced here, says that the "physician shall." So I would share some concerns that, if you meet all the criteria for involuntary admission to hospital, there may not be the flexibility-

Ms Schell: We referred to the criteria under (1.1) not the criteria under (1).

Mrs McLeod: Subsection 20(1.1).

Ms Schell: Subsection 20(1.1), not 21(1), which is in the act.

Mrs McLeod: I'm reading subsection 20(1.1).

Ms Schell: That's (1.1), which is in the bill, not in the act.

Mrs McLeod: But as it amends the act, it's "The attending physician shall complete...."

Ms Schell: But it's not section 20, it's the criteria contained in section 20(1.1), the criteria. It's not the whole section of the act. The criteria is the new section that's in the bill, not in the act. So it does not contain within it reference to language of "shall." It's simply the criteria that are met.

Mr Clark: With reference to what Ms Lankin talked about-a psychiatrist or heads of psychiatry talking about family physicians sending patients to hospitals who didn't meet the criteria-I can think of two cases in my own community where the opposite happened, where the family physician wanted to do something and sent them to the hospital. The hospital sent them away saying they didn't meet the criteria, and both of them ended up in suicides. Sometimes it's a double-edged sword, because we're dealing with human nature. That being said, I'd call the question, Chair.

Ms Lankin: There's no procedure for calling the question. I already said I wasn't going to speak again.

The Chair: Any further debate? Seeing none, I'll put the question. All those in favour of the amendment? Contrary? The amendment is lost.

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Ms Lankin: I move that subclause 33.1(2)(c)(iii) of the Mental Health Act, as set out in section 14 of the bill, be amended by striking out "or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person."

I already put the defence of this amendment on the record earlier, so I won't speak to it.

The Chair: Any debate? Seeing none, I'll put the question. All those in favour of this amendment? Opposed? The amendment is lost.

Ms Lankin: I move that subsection 33.1(2) of the Mental Health Act, as set out in section 14 of the bill, be amended by adding the following clause:

"(d.1) the person has had an opportunity to obtain a second independent medical opinion and such opinion concurs with the community treatment plan."

In the criteria for community treatment orders in the bill that we have been discussing there are a number of items set out. In the latter half of the bill, when we're talking about the physician consulting with other individuals, developing the agreement around the nature of the community treatment plan and the services that will be provided, one of the things that has been brought forward during the hearings and in other discussions is the right of the individual to challenge not just whether they meet the community treatment order criteria, because there are rights advice mechanisms where some of that can happen, but also the content of the community treatment order.

I'm sorry, I don't have it with me, it's in my larger binder. I made reference to it in second reading debate-the US jurisdiction, and the court challenges that led to this, in which there has been an institutional right of second opinion built in. I believe the court challenge established that right in one of the northern states, and I think it's in California where they have actually built that in as a mechanism within their community treatment order. In the psychiatric facility section-and counsel may be able to enlighten us on this-for treatment orders there, there is a right of both an administrative and medical review that can take place around the content of it.

One of the things that may be an example of what could happen here is the nature of the medication that is prescribed and the right of the individual to get a second opinion with respect to that medication. They may have more knowledge themselves about what medication may work best for them or what they've heard of new medication. They might feel the physician they're dealing with lacks that knowledge and they may want to challenge that.

It's part of a balancing act. I don't believe, in most cases, it will be widely utilized but it provides an opportunity, particularly for those individuals who have a history-and while they may be having a problem also have some level of cognizance about the nature of their disease and the nature of their response to treatment-to challenge aspects of what may be being decided for them by a substitute decision-maker and a physician.

Mr Patten: Can I just ask, implicitly is there not the opportunity now for either the patient or the substitute decision-maker to seek a second opinion on a medical procedure?

Ms Schell: Yes, there's nothing to stop a person from seeking a second opinion.

Mr Patten: When we carry this through to some elements in the treatment plan, it could get a little cumbersome, it seems to me. Using Ms Lankin's example, if the substitute decision-maker knows that, for whatever reason, there's a new psychiatrist involved, and that particular cocktail advised, and they have tremendous words about it and say, "We would at least like you to consult with another physician and we have a recommendation to make," is that not encouraged or permissible?

Ms Schell: I believe it is encouraged. It's certainly permissible. The other thing I would just draw to your attention is that there is a proposal from an amendment before you to indicate that the consent that is required for the community treatment plan must be in accordance with the rules for consent in the Health Care Consent Act, and those specifically indicate that the alternatives to the proposed treatment have to be discussed with the person giving consent.

Ms Lankin: To use Mr Patten's words from earlier, what may be contained in various pieces of the legislation and various clauses may not be readily evident to the people we're seeking to serve by this. This not only provides an encouragement for people to think about whether they need a second opinion, it provides a right for them to seek that second opinion and to have some independent concurrence of faith in the establishment of the CTO and the plan that is being offered.

I suggest, from some of the experience in the States, that this is something that's likely to come about as a matter of right through court challenges, and this is an opportunity for us to build it in in a way that is consistent with the language of the section. Surely, at the end of the day-the government calls this a consent-based approach-we want to give the person every opportunity to have faith in the treatment plan that is being put forward.

Mr Clark: Just two quick points, Chair. One is the concern in terms of making it mandatory that there's a second opinion. In northern Ontario we already have difficulties-not even in northern Ontario; I can think in southern Ontario where we have some difficulties-in terms of shortages of physicians and psychiatrists.

I had some stats delivered this afternoon from the Canadian Mental Health Association. At the present time there are 8,735 family physicians providing core mental health services. If family physicians are providing some of these services across the province and there are shortages, how do you make it mandatory that there's a second opinion when in some communities there may only be one doctor? That's one issue that I have.

The second side is-and I refer back to what counsel has said-there is the opportunity now to request a second opinion but, more important, there's an amendment being put forth that again came out through consultations-it's the next one, number 45-that deals with the fact that the physician has to be satisfied that the substitute decision-maker has consulted with a rights adviser and has been advised of their legal rights. We're trying to instil in it that the patients will have a good understanding of what their rights are. So the opportunity is there, but to make it mandatory, especially in communities where there's such a severe shortage of physicians, I have a little bit of reticence there.

Ms Lankin: With respect, the language isn't that mandatorily there is a second opinion; it's that it's mandatory that the person have the opportunity. If the person lacks confidence in the plan that's been put forward and wants to challenge any part of it, what's mandatory is that they have the right to obtain a second and independent medical opinion and that such opinion concur with the community treatment plan before this proceeds. So if there is a difference of opinion between medical practitioners about what is the right plan for this individual, they've got to work that out. There have to be some negotiations. It's an empowerment clause for someone who is going to be subject to a CTO to challenge elements of the plan and ensure that it's the right plan for them.

It is only on those occasions where the person feels that the substitute decision-maker and doctor are putting forward something that is not in their best interests. If the person themself is the one giving consent, if they're capable, they won't agree to the plan. So this is where they're not capable and the substitute decision-maker is involved and the doctor and the decision-maker are putting forward a plan and the individual feels there's a problem with that. We are giving them the right to have the opportunity for a second medical opinion and then to get those two medical opinions to concur about what the treatment plan will be.

Mr Patten: Just quickly, I really don't think this takes away from anything. It doesn't limit anything. It manifests what is already there. To say that in certain areas they may not have the resources, quite frankly if they don't have the physician resources they probably don't have the community resources anyway. So it's probably not going to take place. However, it does underline that there is that right, which, as has been said, has been expressed in other aspects. I would agree with the next motion as well. I see this not taking away in any manner.

The Chair: Any further debate? Seeing none, I'll put the question on Ms Lankin's motion. All those in favour? Opposed? The motion is lost.

This takes us to page 45.

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Mr Clark: I move that clauses 33.1(2)(e) and (f) of the Mental Health Act, as set out in section 14 of the bill, be struck out and the following substituted:

"(e) subject to subsection (3), the physician is satisfied that the person subject to the order and his or her substitute decision-maker, if any, have consulted with a rights adviser and have been advised of their legal rights; and

"(f) the person or his or her substitute decision-maker consents to the community treatment plan in accordance with the rules for consent under the Health Care Consent Act, 1996."

It speaks for itself, Mr Chair.

The Chair: Any debate?

Mrs McLeod: Not a debate, but just to note that I believe this is a significant strengthening of the rights advice that's available and therefore adds significantly to the bill.

Ms Lankin: Just to indicate I'm in agreement as well.

The Chair: Well, I thank you.

Mrs McLeod: Just recognizing progress where it has been made.

The Chair: Indeed. Any further debate? All those in favour of the amendment? Contrary, if any? The motion is carried.

Mr Clark: I move that subsection 33.1(3) of the Mental Health Act, as set out in section 14 of the bill, be amended by adding "and the rights adviser so informs the physician" at the end.

The Chair: Any comment? Seeing none, I'll put the question. All those in favour of the amendment? Opposed? The amendment carries.

Mr Clark: I move that section 33.1 of the Mental Health Act, as set out in section 14 of the bill, be amended by adding the following subsection:

"Protection from liability, substitute decision-maker

"(4.1) The substitute decision-maker who, in good faith, uses his or her best efforts to ensure the person's compliance and believes, on reasonable grounds, that the person is in compliance is not liable for any default or neglect of the person in complying."

This came out as a direct concern of the Schizophrenia Society of Ontario and it's simply an issue of liability indemnification.

The Chair: Any comments? Seeing none, all those in favour of the amendment? Opposed? Carried.

Mr Clark: I move that subsection 33.1(5) of the Mental Health Act, as set out in section 14 of the bill, be amended by adding "and to be informed of that right" at the end.

This is specific to the right to retain and instruct counsel.

The Chair: Any comments? Seeing none, I'll put the question. All those in favour of the amendment? Opposed? Carried.

Ms Lankin?

Ms Lankin: Chair, I withdraw that amendment.

The Chair: Page 49 is withdrawn.

Mr Clark: I move that clause 33.1(7)(a) of the Mental Health Act, as set out in section 14 of the bill, be struck out and the following substituted:

"(a) the person, along with a notice that he or she has right to a hearing before the board under section 39.1."

The Chair: Any comments?

Mrs McLeod: Just for the record, I think that's a significant improvement to the bill in terms of rights advice.

The Chair: Any further comments? I'll put the question. All those in favour of the amendment? It's carried.

Ms Lankin?

Ms Lankin: This amendment deals with language that I have moved on a number of occasions in other parts of the bill where similar language appears and it has been defeated on all occasions. I give up; I withdraw.

Mr Clark: I move that clause 33.3(2)(a) of the Mental Health Act, as set out in section 14 of the bill, be struck out and the following substituted:

"(a) he or she has reasonable cause to believe that the criteria set out in subclauses 33.1(2)(c)(i), (ii) and (iii) continue to be met."

I'll refer to counsel for an explanation.

Ms Schell: This amendment is proposed for the purpose of making the language clearer in this provision of the bill, which has to do with circumstances where a person has not complied with a community treatment order. The test for issuing an order for examination that the issuing physician must meet is worded differently than the threshold criteria for issuing the CTO in the first place. We felt that added a level of confusion that was unnecessary in this process and are proposing that we clear this up by stating the test as it appears in the original CTO criteria.

The Chair: Any comments?

Ms Lankin: I'm just trying to refer back here. The clause that is being struck out reads, "he or she is of the opinion that, because of the person's mental disorder, the person is likely to cause serious bodily harm to himself or herself or to another person or to suffer substantial mental or physical deterioration of the person or serious physical impairment of the person."

It's common language which appears in sections 15, 16, 20, and in part in section 33.1 as well. Referring to 33.1(2)(c) and the subclauses under (c), without reading them all into the record, can you indicate what the key concern was? What was missing from clause (a) that was-

Ms Schell: There are three tests that have to be met for issuing the CTO. They are the existence of a mental disorder-I'm paraphrasing a bit until I find the exact-

Ms Lankin: Actually, I've got it here. So there's a mental disorder which needs continued treatment and care.

Ms Schell: Yes, it would be that criterion. It would be that if the person is in the community, in the circumstances they necessarily must be, the grounds for a form 1 exist and subclause (iii) is also in place.

The Chair: Any further comments? Seeing none, I'll put the question. All those in favour of Mr Clarke's amendment? Contrary, if any? Carried.

Ms Lankin?

Ms Lankin: Long-suffering I am, but having given up once, this is the same language. I withdraw this as well.

The Chair: Number 53 is withdrawn.

Mr Clark: I move that subsection 33.4(3) of the Mental Health Act, as set out in section 14 of the bill, be struck out and the following substituted:

"Order for examination

"(3) If the person subject to the community treatment order fails to permit the physician to review his or her condition, the physician may, within the 72-hour period, issue in the prescribed form an order for examination of the person if he or she has reasonable cause to believe that the criteria set out in subclauses 33.1(2)(c)(i), (ii) and (iii) continue to be met."

I'll refer it to counsel.

Ms Schell: The same explanation applies with respect to the motion at page 52. The circumstances here are slightly different in that this provides direction for the physician as to what to do where consent to the community treatment plan is withdrawn. There is a requirement in the bill for notice to the physician that that's the case so that there's no misunderstanding that this is just a situation of non-compliance. Then there's a 72-hour window of opportunity for the physician to require an examination to determine whether the criteria for the CTO continue to be satisfied.

The Chair: Any comments? Seeing none, I'll put the question. All those in favour of the amendment? Contrary, if any? Carried.

Ms Lankin: I move that subsection 33.5(2) of the Mental Health Act, as set out in subsection 14 of the bill, be amended by adding at the end, "and the person subject to the plan, or his or her substitute decision-maker."

The section that we're referring to, 33.5(2) is a section which reads:

"If the physician who issues or renews a community treatment order is absent or, for any other reason, is unable to carry out his or her responsibilities under subsection (1) or under sections 33.2, 33.3 or 33.4, the physician may appoint another physician to act in his or her place, with the consent of that physician."

I recognize and agree with the need to have a clause that says that if the doctor is unable to continue, we need to find someone else to take over the community treatment order, but the fact that it would be a bilateral agreement simply between the two doctors strikes me as not being sufficient in terms of a health care system which respects the patient and/or the patient's substitute decision-maker if the patient is not capable of making informed decisions or giving informed consent.

You could have a situation where an individual who is capable finds themselves being transferred to a doctor with whom they've had a very negative experience in the past. It probably wouldn't happen often, but it could happen. Given the comments the parliamentary assistant has made about scarcity of resources, that is a possibility.

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Surely, where a person isn't capable, the same thing applies with respect to the substitute decision-maker, that the physician should consult with and obtain the agreement of the substitute decision-maker about who the other physician is who comes in.

I don't put this in place to tie up the existing physician, to stop them if they are unable to continue. The alternative, obviously, is that the community treatment order regime risks falling apart and the individual risks the alternative of being detained in a facility, so I think people are going to come to some agreement. But I can't see that this should be simply an agreement between physicians and that patients and/or their substitute decision-makers shouldn't be empowered by the legislation to have opinion on and be party to the agreement about who the replacement physician is.

Mrs McLeod: I want to speak in support of the amendment, and I hope the government will look seriously at it. I suspect the reason this is here is in recognition that there is an onus on the physician in order to provide the supervision of the community treatment order, and that obviously physicians are going to be on holidays, they are going to be away from time to time. In the normal course of a physician being away temporarily and arranging for coverage of patients, you don't want to preclude that happening and make sure that they have to get the consent of every patient they are caring for in order to be able to have another physician responsible for a temporary period.

But the way the clause is worded now, it allows exactly what Ms Lankin has said to happen, which is the actual transfer of the care of that patient to another physician without the consent of the person or the substitute decision-maker. That would be a huge violation of a trust relationship. I quite honestly don't believe any physician would do that. I would like to think no physician would do that, but I don't think the legislation should countenance it, in any event.

Mr Patten: Ditto.

Mr Clark: Just some quick things. One, there is some concern that when patients develop a certain level of trust-and I know some family members who don't want to go near any other doctor except their doctor, period-it becomes a difficulty when you have a community treatment order and a doctor is going on holidays. So that's why it was a part of the act.

With respect to trying to safeguard the rights of the patients, I would point out that they can still withdraw their consent to the CTO, which is 33.4(1). They can also request re-examination and they can also apply to the Consent and Capacity Board. So there are a number of other things if a doctor assigns them off to someone else for a long period of time or just transfers the entire file. The intention is to deal with the issues of shortages of physicians and holidays and seminars and things like that where the doctor does need to get away but needs to have an attending physician responsible for the file.

Ms Lankin: Then the language should have been written that way; it's not. We shouldn't pass bad laws, flawed laws. There is no other group of patients in this province whom we would subject to having their case transferred without their input or consent with respect to changing doctors.

I would point out to you all of the time that the government has spent objecting to, for a period of time, enrolled patient groups like health service organizations unless the patient has the right of choice and the option to move. In this case, you're dealing with a vulnerable population, with a population that is already under an order for treatment, and there is contained within that-and we heard from many of the families-a sense of authority which is not a balanced field. This is not for patients who may feel the right of self-advocacy among many of these things.

I'm not going to prolong this, but I simply say there is no other group of patients or patient population in the province whom we would treat like this, and I think it is abhorrent that we would see fit to allow two physicians to decide to transfer files and not have within that submission that they seek the consent of the patient or the patient's substitute decision-maker.

The Chair: Any further comments? Seeing none, I'll put the question on Ms Lankin's motion.

Ms Lankin: A recorded vote, please.

AYES

Lankin, McLeod, Patten.

NAYS

Clark, Dunlop, Munro, Wood.

The Chair: The motion is lost.

Mr Clark: I move that subsection 33.5(3) of the Mental Health Act, as set out in section 14 of the bill, be struck out and the following substituted:

"Responsibility, named providers

"(3) A person who agrees to provide treatment or care and supervision under a community treatment plan shall indicate his or her agreement in the plan and is responsible for providing the treatment or care and supervision in accordance with the plan."

This addresses some of the concerns that were raised by the CMHA during the consultations.

The Chair: Any comments? Seeing none, I will be put the question.

All those in favour of the amendment? Opposed? The amendment carries.

Mr Clark: I move that section 33.6 of the Mental Health Act, as set out in section 14 of the bill, be struck out and the following substituted:

"Protection from liability, issuing physician

"33.6(1) If the physician who issues or renews a community treatment order or a physician appointed under subsection 33.5(2) believes, on reasonable grounds and in good faith, that the persons who are responsible for providing treatment or care and supervision under a community treatment plan are doing so in accordance with the plan, the physician is not liable for any default or neglect by those persons in providing the treatment or care and supervision.

"Same, other persons involved in treatment

"(2) If a person who is responsible for providing an aspect of treatment or care and supervision under a community treatment plan believes, on reasonable grounds and in good faith, that a person who is responsible for providing another aspect of treatment or care and supervision under the plan is doing so in accordance with the plan, the person is not liable for any default or neglect by that person in providing that aspect of treatment or care and supervision.

"Same, physician

"(3) If a person who is responsible for providing an aspect of treatment or care and supervision under a community treatment plan believes, on reasonable grounds and in good faith, that the physician who issued or renewed the community treatment order or a physician appointed under subsection 33.5 (2) is providing treatment or care and supervision in accordance with the plan, the person is not liable for any default or neglect by the physician in providing the treatment or care and supervision.

"Reports

"(4) The physician who issues or renews a community treatment order or a physician appointed under subsection 33.5(2) may require reports on the condition of the person subject to the order from the persons who are responsible for providing treatment or care and supervision under the community treatment plan."

This addresses concerns from the OMA and the OPA with regard to liability itself, and it's pretty well self-explanatory.

The Chair: Any comments? Seeing none, I'll put the question.

All those in favour of the amendment? Opposed? The amendment is carried.

Mr Clark: I move that paragraphs 2 and 6 of section 33.7 of the Mental Health Act, as set out in section 14 of the bill, be struck out and the following substituted:

"2. Any conditions relating to the treatment or care and supervision of the person....

"6. The names of all persons or organizations who have agreed to provide treatment or care and supervision under the community treatment plan and their obligations under the plan."

It's pretty well self-explanatory.

The Chair: Any comments? Seeing none, I'll put the question.

All those in favour in the amendment? Opposed? The amendment carries.

Mrs McLeod: I move that section 33.7 of the Mental Health Act, as set out in section 14 of the bill, be amended by adding the following subsection:

"Restriction, community treatment plan

"(2) A community treatment plan cannot authorize or require the use of physical or chemical restraints."

If it's in order, I would be prepared to seek a friendly amendment to my own amendment and to remove the words "or chemical." I understand there is some concern about the interpretation of "chemical restraint" as it might affect medicating a patient as part of a community treatment plan. I really do feel strongly about a message that reinforces the whole idea in the bill that this is not about enforced compliance in terms of physical force and that we want to provide as much assurance as we possibly can that nobody is going to be held up against a wall and forcibly administered their medications. In the interest of having the government consider this amendment, I would be pleased to remove the "or chemical" and leave just "authorize or require the use of physical restraints," which I think is completely inconsistent with a community treatment plan.

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The Chair: As your first order of business, is it acceptable as a friendly amendment for us? Seeing no disagreement, Mr Clark, did you wish to respond?

Mr Clark: I'll refer to counsel, to start off.

Mr Sharpe: With the voice I've got left, I thought I'd tell a story to that time.

Mrs McLeod: Before the vote?

Mr Patten: It better be a short story, then.

Mr Sharpe: Well, I'll try. I'm the historian; what can I tell you? In the mid-1970s, there was a case involving a patient who was acting out and who needed some medication to restrain them. Four nurses had to hold this person in order to prevent them from doing serious harm to other people and to themselves. Ultimately, that patient charged the four nurses with criminal assault. They worked for one of our government hospitals and one of my first jobs, when I was counsel, was to deal with the issue. I said, "Clearly, they were doing this in order to implement the responsibilities of a facility to take control of someone to make sure they didn't act out in an inappropriate way." Ultimately, six months later the charges were dismissed, but for several months there was a lot of concern around the system about just how far staff could go in restraining patients in appropriate cases.

In 1978, when we sat in this room to put provisions into the Mental Health Act, we decided to put in a provision around "restraint" and define its parameters. It's been altered a bit over the years, but essentially the concept's still there. The concern might be that if you specifically prohibit these plans from contemplating the concept of restraining people in appropriate cases, might it be perceived as perhaps even undermining the common law requirement? It's not an authority so much as a responsibility to use physical means, for family members, for clinical staff to use what necessary means are appropriate in the circumstances where someone is acting out. It's just a question. I don't know what the impact would be.

Mrs McLeod: With respect, which is one of those nice ways we have of saying we're about to disagree strongly with you, the story underlines my concern. This doesn't talk about the use of physical restraints in a psychiatric facility for somebody who's been involuntarily committed to a psychiatric facility. I may wish to disagree with that, but that's not what the amendment speaks to. Over and over again, we asked witnesses what they saw as being the means of enforcing the order. For me, some of the most compelling things were the way you enforce the order is you go out and find somebody who's lost. That's one way of enforcing it.

The other was, if it comes to that, the threat of readmission to hospital, in which case if it comes to that, that's how you enforce it and at what point the physical restraints might have to be used. I understand that. But I just believe that the use of physical restraints in enforcing a community treatment order, which is supposedly being done through consent, whether of the individual or the substitute decision-maker more often, it's still supposed to be a supportive environment that's being created. As long as the threat of the use of physical restraint is there and the images are there for people because of their history with restraints in a psychiatric facility, I just don't think we want that kind of sense of coercion to further colour people's understanding of what the community treatment order's supposed to be all about. Everything that's been said by the government members, by Mr Patten in the presentation of his previous bills, has been that this is to be a supportive environment, not a coercive environment. I would just again argue that if it needs physical coercion, the person probably should be admitted so that we're not changing the nature of community treatment to something less than supportive.

Mr Sharpe: If I could just respond for a moment, I suppose the way I saw this was that if someone has a repeated pattern of acting-out behaviour, even though this is in the community, it's an extension of their care in the hospital because they are committable, albeit on the form 1, as part of the criteria for-

Ms Lankin: You don't want to go back there. You missed that conversation.

Mr Sharpe: I've a feeling we're going to go back there eventually.

Mrs McLeod: They're not actually committable. They're only eligible to be assessed for committal.

Mr Sharpe: Eligible to be committed. It's an application.

Ms Lankin: Eligible to be assessed for commitment.

Mr Sharpe: It's an application. That's right.

Mrs McLeod: I would still argue, if I may, that if it gets to that point, I do not believe force should be administered in somebody's home. I think if it's necessary to use physical restraints, the person should be admitted, even if it's for two hours, so that it's done by people who are trained, who are administering it in a way where they have professional responsibilities that define the limits of what can be done and that it not be something which is then associated with whatever home environment that individual is in.

Mr Sharpe: I understand, and I agree with what you're saying. It's a matter of degree. The images of the abuses of nursing home residents being tied to chairs, and sometimes people are treated that way, the elderly in their homes, is certainly terrible. What I was thinking was more, for the person who acts out and, for an instant, for a moment, for a minute, has to be brought under control physically so they don't harm someone or themselves, would we be preventing that by putting this amendment in? Might people perceive that-

Mrs McLeod: But that's not what the amendment says. "A community treatment plan cannot authorize or require ... physical restraints." So your scenario doesn't apply. Do we have to go to a vote?

The Chair: We've got a couple of minutes, if you don't mind.

Ms Lankin: If I may just add to that, I think in furthering-not all, but a lot of the situations that you're speaking to, Gilbert, would be circumstances where the common law around self-defence would apply. You could think of that one individual who needs a bear hug to calm down. I don't know if that's the situation, but it strikes me that's not generally this population that we're talking about. However, what this suggests is that it can't be authorized or required in the plan, and professionals use their judgment in those circumstances.

Perhaps it's something you could give a moment's thought to while we go to vote. Given the common law around the right to self-defence, the right and obligation to intervene if someone is about to do harm to themselves, if you see someone with a knife to their own throat or a gun to their head and you stand by, there's an issue there. If it's about someone doing-

Mr Sharpe: That's really what I'm talking about.

Ms Lankin: If there's someone about to do serious harm to themselves or someone else, I think there is common law to protect that situation-

Mr Sharpe: There is.

Ms Lankin: -and this is contemplating something different in terms of authorization or requirement of use of physical force.

Mr Patten: Can I just add my concern to this? I think it really is crucial to the practitioners who are going to be part of community programs that they do not see themselves intrinsically in the plan. It's not in the plan. In other words, if such a circumstance arose, it could happen anywhere and anybody around would try to do whatever they could. They would call the police or they would call a doctor immediately, whatever, and they would take immediate action, regardless of the plan. If it did happen within a time frame in which a plan was in progress, it would seem to me it would be quite valuable maybe for the patient to be brought back to the facility and then they try it once more, and they say: "Our job is not to do that. Our job is to completely help you again."

I would say to protect the integrity and working environment of the plan, their job is of course to monitor compliance, that's for sure, to be as helpful as possible and to provide some supervision, but it's not built in that if you step out of line, we are going to coerce you. That's not our job.

The Chair: If you want to phrase a quick response, we've got about six minutes before the vote.

Ms Lankin: Can we not do that when we come back?

The Chair: OK.

Interjections.

The Chair: I tell you what, if that's the consensus of opinion, the committee will recess till 6:15.

The committee recessed from 1750 to 1818.

The Chair: I call the committee back to order. We will continue our clause-by-clause discussion of amendments on Bill 68. We were in the middle of discussing the amendment on page 60. I don't know whether there were any further comments that any members intended to make?

Ms Lankin: I think we were about to have a response.

The Chair: All right. A response from Mr Clark or any of the ministry staff?

Ms Schell: The only thing I would like to add to Gilbert's response is that the Health Care Consent Act does set out the common law duty with respect to restraint, and it says: "This act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others." That sets out the parameters for restraint that are authorized by the common law and the duty there.

I don't know if that gives Mrs McLeod any comfort, but it does seem to address this issue. I would be concerned that if there was a further provision with respect to restraint it would make it impossibly difficult for caregivers to understand what their obligations are here, that they might hesitate to fulfill their common law duty, thinking that perhaps it is in violation of the amendment that's being proposed.

Mr Patten: This is a technical question. Is there a way of referencing that-we have a lot of things that refer to other acts-such as an asterisk related to the issue of restraint at the bottom of the bill that explains?

Ms Schell: I think so, but unfortunately, I'm going to have to give you a lawyer's answer here. The way we've set up this legislation is to put the community treatment plan into the definition of "treatment" under the Health Care Consent Act, so we bring in those rules with respect to treatment and informed consent and so on. I do think it's there, and I think there was an attempt in an earlier motion to clarify that further by specifically referencing the rules for consent in the Health Care Consent Act.

The Chair: Do you wish to comment on that?

Ms Laura Hopkins: I'm sorry. I stepped out for a moment.

Mr Patten: The legal counsel was saying that they're concerned about reiterating or identifying specifically this requirement that they cannot authorize requirement of physical restraint, or restraints, period. However, because it's already in the other bill, I'm asking if there's a way in which you can reference it so that someone can read in that section a reference to the act which states blah, blah, blah, if you know what I mean.

Ms Hopkins: There probably is. I'd need to speak with Diana for a couple of minutes, because this is a fairly intricate area of law. If you don't mind, I'll take a couple of minutes and see if there's a suggestion I can make.

Ms Lankin: I would like to actually make a suggestion around that. But let me say that what Diana just said underscores the point I made earlier, that this language that's being proposed indicating a community treatment plan cannot authorize or require the use of physical restraints would not take away from the common law duty. The reference of the Health Care Consent Act actually makes that explicit, except it's not explicit in the language that's before us here. What you're saying is that it could create questions in caregivers' minds.

My suggestion is to import the language from the Health Care Consent Act-that exact clause that you read-in as a subclause: "A community treatment plan cannot authorize or require the use of physical ... restraints. Nothing in this act takes away from the common law duty to ... ." Then I think you've got that covered.

If I could point out, I do believe, and it's been drawn to my attention, that the use of forced or physical restraint in a hospital setting has an oversight requirement. There are people who must file reports when that is done. There is a review of what has happened. There is no such provision built in here should, for example, a community treatment order be written in such a way to require restraint. We don't have that same kind of oversight. We've got all of the common law and all of the duties of health care professionals under RHPA and all of the provisions under the Health Care Consent Act, but none of that is imported here in a way that is clear.

Surely if we're looking at clarity, you would want to have that kind of oversight and authority and review built into the use of force and the use of physical restraint in the community as well. One way around it is to indicate that the plan can't authorize or require that, but nothing takes away from the common law duty and the Health Care Consent Act. We could build that into the actual amendment.

Mrs McLeod: This is essentially the same point, but I would think the government would be reassured by the response that you've just provided, that this doesn't take away from the responsibility of the family in the normal course. I would really ask government counsel to rethink objection to the amendment on the basis that you have that reassurance built into the Health Care Consent Act. All this is really saying is that the use of force to enforce should not be built into the plan itself.

Mr Clark: I have a couple of concerns. Assertive community treatment teams are not restricted from using any type of restraints in the community currently. We don't restrict them from doing it; it's their call. If there's something going on, it's their call.

The other concern I have is that during the consultation process, I didn't ask the psychiatrists, the OMA, the assertive community treatment teams about this issue. I really didn't. It came up towards the end of the consultation.

Those are my two concerns. Did you have anything to add?

Mr Patten: Brad, I just had one other point. I think there's a distinction. You have a plan in front of you and it doesn't say, "By the way, if they don't comply, then exercise physical restraint and then give them a shot," whatever. That's not part of your plan. We're talking about a treatment plan here. There is always, as it's been said by legal counsel, the opportunity, in exceptional circumstances, to exercise your common law duty. I think that's there in any circumstance, so it does not preclude that. That is still there in the bill. But this is saying that the treatment plan, by agreement, is going to be-who the hell is going to agree with that point if you had the other one? It seems to me if you build it in you're not going to take it away.

Mr Sharpe: I would just add one point. None of us are clinicians. Following up on your point, let's take a dual diagnosis individual who, as a consequence of the developmental handicap, has a pattern of acting out and showing aggressivity, but one wants to have them in the community under some kind of supervision and care treatment. It's important to build into the plan the notion of a type of restraint that works when they do act out, that that's part of their lifelong pattern of behaviour. If this would preclude it, I don't know the answer to that. I suppose, as Mr Clark said, it's a change that we've not had a chance to talk to clinicians about. Might it be that we're precluding the application of CTOs to certain types of people who would then have to stay in hospital? I just don't know the answer.

Mrs McLeod: I don't think we can envisage all possible scenarios around the table, but rather than err on the side of not missing a single person who could be caught under this brand new expanded power to commit, I really think that once in a while we should err on the side of something we know will exist, and that is a fear of community treatment orders, which are supposed to be supportive, being seen to be coercive through the use of force. What this primarily does is assure people that's not part of what a community treatment plan is all about. To me coming into this as it was presented through Mr Patten, it was not envisaged that these would be forcibly applied.

Ms Lankin: I want to echo that and indicate that the situation that you've raised as a possibility is something that would be caught in the review and could be addressed, if necessary, with specific language to allow for the possibility that it may become a course of action out there for certain doctors to order restraint and medication for certain patients with the agreement of a substitute decision-maker. I see that as a real possibility. There are certain substitute decision-makers and doctors who could come to that conclusion. That is not what I think any of the members of the schizophrenic societies would want to hear or anyone else envision that this provision would be useful.

I think very clearly, although I agree with the caution that Diana has given in terms of not wanting to create confusion among the caregivers, I would say let's simply rewrite this amendment and, with the agreement of Mrs McLeod, add in the actual language from the Health Care Consent Act that says this doesn't take away from the common law duty to act to prevent someone from doing serious harm to themselves or someone else.

The Chair: Thank you. Any further comments?

Mrs Julia Munro (York North): I have a question for legal counsel. I understand the intent here, as has been suggested in this amendment, by referring specifically to the treatment plans, but I wondered. The question of physical restraint I think comes to mind for all of us in a very dramatic, physical way. Would the inclusion of language such as that open up the possible interpretation of technologies and things that we don't even know about in terms of-I was thinking-an identification process or things like that, which could be legally construed as physical restraint and in no way be the kind of thing that you have in mind when you present this amendment but, in fact, would then act as an impediment to the possibility of newer technologies or whatever that might then become available and then would create a legal impediment?

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Ms Schell: I think that's certainly possible. I hadn't thought of the problem from that point of view, but you raise an interesting point. It's a point that goes with my concern about a further muddying of the water here. These issues of restraint are very complicated. Ms Lankin has referred to the criminal rules, we've talked about the common law, and we've talked about references in the statute already to this issue. I can see the problem that you mention arising. I don't have a specific example that comes to mind, but it certainly is a possibility.

Mrs Munro: I understand the issue in terms of the plan, but it just occurred to me that there might be something where it would open up and then become an impediment to treatment.

Mr Sharpe: You mean like a device to monitor somebody?

Mrs Munro: Yes. Would that be something that would be construed as physical?

Ms Schell: It could be. I have heard anecdotally that there are some institutions that use monitoring devices now-not, I hasten to add, the provincial psychiatric hospitals. They get their advice from the office that Gilbert and I work for-or Gilbert used to work for, I should say. I think that those kinds of things that limit a person's ability to have the same kind of liberty that we all have could be construed as restraint.

Mrs McLeod: The whole act does that.

Ms Lankin: If I may, then the requirement of a community treatment order to report at certain points in time greatly limits a person's ability to live within a certain jurisdiction. If anything, for me, the question that you raised gives all the more urgent concern to have this language included. If we could, in the future, envision as part of a community treatment plan someone being outfitted with electronic monitors-I mean, these are people who need treatment and help and support; these are not people who are subject to criminal detention in any way.

I want to come back to the point that Diana makes. A reference in the Health Care Consent Act around this is not going to be something that is generally known or understood under the provisions of the community treatment order. It will be the way in which most health professionals operate, because they've been trained to understand the Heath Care Consent Act, but not necessarily community service providers and community agencies-they don't have the same level of understanding or expertise or familiarity with that legislation-and certainly not family members.

It seems to me that importing that provision from the Health Care Consent Act has value in and of itself, to have that clearly in here in conjunction with this provision. I can't imagine a situation where we would believe that it is appropriate to have physical restraint as any part of a plan that's out there. That's not what this is all about. Let's be very clear. In an emergency situation where a person is at risk of harming themselves or someone else, the common law language and the language from the Health Care Consent Act will cover that and will be clear if we import that in here. Otherwise, we are leaving this open to someone including in a community treatment plan the use of physical restraint, the use of which is regulated in a facility setting, with authority, oversight, reporting mechanisms and reviews. We have built none of that protection into the community side of this. This will live up to the fears that people have had about this.

I don't think the government at all intends that a plan would be used for someone to be held and injected, and that's what is envisioned as a problem, and unless we build in the prohibition of the use of physical force or physical restraint that may well happen. That will certainly discredit the whole attempt of what the government is purporting to put forward in terms of the compassionate treatment regime.

The Chair: Thank you.

Mrs McLeod: With appreciation to legislative counsel, I do have a friendly amendment to propose. The amendment would add, after the word "restraint," the words "however, for greater certainty, this does not affect the common-law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others."

I ask consent to introduce that as a friendly amendment. That's directly from the Health Care Consent Act.

The Chair: Do you agree that would be incorporated from the amendment? Seeing no dissent, consider that incorporated.

Mrs McLeod: If I may, Mr Chair, I think we may have exhausted debate on this but I do want to state two things: First, a deliberate vote against this, I believe, invalidates a lot of what has been said about the purpose of the community treatment orders.

Second, I do believe that if this bill goes to court-whether in a charge against the way the bill is written or as a result of some harm having been done to somebody as a result of the exercise of physical restraint in some way-the fact that the government wasn't prepared to vote against authorizing the use of physical restraint as part of the plan would be a problem if the government has not moved immediately to provide those protections in terms of the supervision that would be required to ensure that this could be done in a safe way. I really think the government would take on to itself a lot of onus to make sure that those protections were put in place immediately.

The Chair: Any further comments? Seeing none, would the committee like a copy of the amendment Mrs McLeod has just read or do we all understand the addition? Seeing no request, I'll put the question.

Ms Lankin: Recorded vote.

AYES

Lankin, McLeod, Patten.

NAYS

Clark, Dunlop, Munro, Wood.

The Chair: The amendment is lost.

The next amendment is page 61.

Mr Clark: I move that section 14 of the bill be amended by adding the following section:

"No limitation.

"33.8 Nothing in sections 33.1 to 33.7 prevents a physician, a justice of the peace or a police officer from taking any of the actions that they may take under section 15, 16, 17 or 20."

The Chair: Any comment? Seeing none, I'll put the question.

Ms Lankin: Can I just ask for a brief explanation?

Ms Schell: Certainly. This amendment is proposed to alleviate any confusion about whether or not, in appropriate circumstances presently authorized by the law, physician other than the one who issued the CTO or a justice of the peace or a police officer or a physician in a psychiatric facility can take action under the sections that are referenced here.

The nature of the concern was that, as you know, we're in a mobile society where somebody could be on a CTO here, they're lost track of, they're in difficulty in Thunder Bay and the physician in Thunder Bay, at that point, or the police officer or the justice of the peace, is uncertain about how their other statutory obligations mesh with the rules under the CTO.

The Chair: Any other comments? Seeing none, I'll put the question. All those in favour of the amendment? Contrary, if any? Carried.

Ms Lankin: I'll read this into the record and then seek some clarification from the government before deciding how to proceed.

I move that section 14 of the bill be amended by adding the following section:

"Review of community treatment orders, plans

"33.8 The Lieutenant Governor in Council shall appoint a person to undertake a comprehensive review of, and to report on, the provisions of this act relating to community treatment orders five years after those provisions are proclaimed."

There is a Liberal motion to set in place a review on an ongoing periodic basis of two years. There is a further motion from the New Democratic Party to establish an office of the mental health advocate, which has as part of its responsibility a review of the effectiveness and implementation of community treatment orders so there's some more detail in terms of what's expected. I understand that the government has given consideration to and perhaps has a proposal with respect to an effective review period.

I am not wedded to this language. This is an alternative in light of the slim possibility that the government might not support my mental health advocate's office amendment. I think that if we could get some clarification in terms of the government's intent with respect to a review, I might be willing to stand this amendment down, and subsequent amendments, depending on what we hear.

Mr Clark: With the Liberal motion, which is number 63, it's the government's intention to offer a friendly amendment to section 2, "A review must be completed"-where the Liberals have every two years, we're suggesting every five years-"and the first review must begin no later than the fifth anniversary of the date on which" yada, yada.

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Ms Lankin: Given that, do I understand that there will be agreement to that friendly amendment? No? OK.

Mrs McLeod: I won't say no right off, but I consider five years to be too long.

Mr Clark: Let's just stand yours down and we'll talk about 63.

Ms Lankin: That's just what I'm trying to say. I will stand this down at this point in time, as opposed to withdrawing it.

Mr Clark: I knew it was coming at me.

The Chair: Given the relationship, I suggest we stand this down just until consideration of number 63.

Mr Clark: What a great idea.

The Chair: Unlike the others, where we've deferred to the very end of the entire process, is my point.

Ms Lankin: I'm in complete agreement with you.

The Chair: Thank you. As always.

Ms Lankin: At one point in my life, I had to find the opportunity in which I could say I was in complete agreement with Steve Gilchrist, and it just happened.

The Chair: I imagine we have lots of tapes of you saying that on the CBC.

That would take us to motion 63.

Mr Patten: I move that section 14 of the bill be amended by adding the following section to the Mental Health Act (after section 33.8 of that act):

"Review

"33.9(1) The minister shall establish a process to review the following matters:

"1. The reasons that community treatment orders were or were not used during the review period.

"2. The effectiveness of community treatment orders during the review period.

"3. Methods used to evaluate the outcome of any treatment used under community treatment orders.

"Same

"(2) A review must be completed every two years, and the first review must begin no later than the second anniversary of the date on which subsection 33.1(1) of the act comes into force.

"Report

"(3) The minister shall make available to the public for inspection the written report of the person conducting each review."

The Chair: Thank you. Any comments?

Mr Clark: If I may try to explain why the government was suggesting five years instead of two years: It was actually Dr Marie Bountrogianni who raised the point during the hearings about the validity of different scientific studies and reviews because of the narrowness of the audience that's included in that review. So the concern that I took as she was talking about it, and then going back and talking about the review, is that in two years after the bill the question becomes, "Will there be any validity to the review if there is very little use of the CTOs during that two years?"

As the education period unfolds, as we begin educating the assertive community treatment teams, the psychiatrists, the physicians, the nurses, everybody, as all that unfolds, I don't think it's going to happen overnight, that this particular act is going to start having an immediate impact. There has to be an implementation and education period.

The two years, from my concern at a personal level, was very tight, and you may not have sufficient evidence to review at that point. That's why the suggestion was being made, with complete respect, to just make it a longer period of time. I'm open to suggestions in that regard, but I think it should be a slightly longer period of time.

Mr Patten: If I could just say to that, I think two to five is a grave difference. The other thing is, there was another amendment made suggesting that the period of first review begin two years following the actual implementation of the program rather than the passage of the bill, which I think would cover off somewhat.

I think the first period of time, as I look at it, is, what are we learning? In the spirit of learning and what's working and where we need to make some adjustments and things of that nature, five years is a hell of a long time, it seems to me. If there's a compromise there of even a three- or four-year period, I would agree.

But with the other qualifier, it would not be from the point at which the bill was passed but at which you implemented something. Saskatchewan, I believe, waited two years before they had full implementation of their program and then they began their review on this.

Mrs McLeod: I appreciate the openness in looking at intent here. The reason I was so quick to react was because, to begin the first review five years after the implementation-and I note with appreciation that there is a subsequent amendment proposed by the government to have the implementation of the community treatment orders as of December 31, 2000, which would mean that the beginning of the review would not begin until January 2006. We could be talking seven years before we actually have something that tells us whether this is working and whether there are problems.

I appreciate what you're saying about conclusive evidence drawn from a significantly large population. But I don't think that's what is set out in here in terms of the purpose of the review-conclusive evidence as to whether or not we should keep on with community treatment orders or abandon them. The intent was, and it says, "The reasons that community treatment orders were or were not used during the review period."

I think there are two reasons why we might not have a large target population to consider at the end of two years, to begin to consider after two years. One is that we have got so many community supports in place that the people are getting the support without having to go through a commitment process. That would be a very positive reason not to use CTOs. The other would be that there are not enough community supports in place in order to implement the CTOs, in which case at the end of two years, if we're not seeing CTOs used because we don't have community supports in place, all of us who are committed to doing something with this would want to say: "Wait a minute. At the end of two years, if we're not using the CTOs, we'd better know why." If we wait seven years to find out we're not using them because the community supports aren't in place, that's seven years of people going without the kind of treatment support they need. I would argue that we need to begin that much sooner.

Mr Clark: Might I suggest, then, in keeping with what the intent is, that the first review would be three years instead of the two years and then each subsequent review could be five years.

Mrs McLeod: I like those better, but--

Mr Clark: I thought you might. Once we've done the initial review, then my suggestion is that we should have a formalized format every five years. I still think at some point, even in the review, if I was involved in the review, that I would be keenly interested in having some peer reviews in terms of the analysis of the data that are coming in to find out whether or not it is working.

Mrs McLeod: Could I negotiate one other change, then?

Mr Clark: Sure. You can try.

Mrs McLeod: Five years on the regular review, but the first review would be undertaken within the first three years, within the third year.

Mr Clark: Within the first three? Yes, that's fine.

Mr Patten: That's what you said before.

Mrs McLeod: No, it's beginning, and I just think if we're waiting three years we should make sure it's done within that third year.

The Chair: Mrs McLeod, once you bring the response, perhaps at some point you could read the actual sentence you're proposing.

Mr Clark: I think the way the Liberals have it actually worded-unless I'm misinterpreting it, I don't know-is that a review must be completed within three years.

The Chair: If I understand Mrs McLeod correctly, were you saying that a review must be completed every five years and the first review must begin no later than the third anniversary of the date?

Mr Clark: Yes.

Mrs McLeod: I was suggesting, and I could offer wording: A review must be completed every five years and the first review is to be undertaken and completed within the third anniversary of the date.

The Chair: "Must be completed."

Mrs McLeod: Must be undertaken and completed, so it doesn't suggest it would begin beforehand.

Mr Clark: I'm just trying to think of the process within that three years.

Ms Schell: I'm not sure I understand the proposal here. Could we try that one more time?

The Chair: If I understand it, Mrs McLeod is changing in the first sentence the "two" to "five," and the first review, rather than begin, must be undertaken and completed-but the "completed" is the operative point-no later than the third anniversary of the date on which subsection 33.1(1) of the act comes into force. Is that correct?

Mr Clark: I hear what's being said. The concern I have, then, is that again we may find ourselves in a position of having to start a review in the second year, with insufficient evidence to review.

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Mrs McLeod: That wasn't my intent.

Mr Clark: I understand that, but a review could take anywhere from six months to a year to do it effectively, so they quite conceivably could find themselves reviewing it.

Mrs McLeod: Would you settle for "undertaken within the third year"? Leave out "completed," and undertake it, which provides you with the flexibility if it simply can't be completed but says to me it's more than beginning.

Mr Clark: That's fine: "undertaken in the third year." That would allow them that latitude so they'd be doing it in the third year.

The Chair: Ms Lankin, do you still have comments?

Ms Lankin: Yes, one suggestion and one comment. I would offer, as people are drafting that, that we invert those two provisions in the language to make it clear that it would be:

"(2) The first review must be undertaken within the third anniversary year of the date on which subsection ... comes into force, and a review must be completed every five years thereafter." It reads better and is understandable.

I'd like to comment, with respect, and people know, again from my comments on the record, from the beginning I have indicated the need for oversight for review of the CTO provision: the effectiveness of it, when it is utilized, when it's not, given the provision that if community resources out there are not being utilized. I have two or three different amendments that get at this very issue. I have no pride of authorship and am fully willing to support this particular amendment.

I will point out one problem that I have with this amendment, and that is that it's structured that "The minister shall establish a process to review the following matters...." I remain absolutely convinced that it's necessary to have a process where there is a person appointed outside of the ministry and the minister's review and the report made public through the ministry only.

I need not detail all the reasons why. Those of you who have heard even recently my concerns around nursing homes and other things within the Legislature will understand my skepticism at this provision. However, it is necessary that the review be done, and if this is the language that the government is willing to accede to, although I think it is inferior to a provision that would have an outside oversight, it is critically important that there be a review and a public report. The quality of that report is something we can comment on, as legislators, at that time.

I support the discussion around the friendly amendment on the time period and will certainly support this amendment, and when we return we will appropriately withdraw the previous amendment that I had in. However, I will continue to proceed with the amendment that deals with the office of the mental health advocate in the hope that once that's established, that is the person the minister will assign this job to.

Mrs McLeod: I agree with Ms Lankin's comments, but I think what we're trying to do is practically out of the possible because the skills of opposition politicians get a little rusty. But it has been suggested by legislative counsel that we stand this down long enough for her actually to draft the amendment, that could then be-

The Chair: Does everybody agree? Agreed.

That takes us to Ms Lankin, number 64.

Ms Lankin: I move that section 14 of the bill be amended by adding the following section:

"Rights of persons not subject to community treatment order

"33.9 A person who is not subject to a community treatment order is entitled to obtain comprehensive mental health services."

One of the concerns that has been legitimately raised during the hearings, and it's a concern I concur with, is with the inadequate level of community resources that currently exists in this province, the possibility that a person being placed on a community treatment order may somehow take priority in terms of access to services in the community, and that others in the community who are voluntarily seeking those treatments will be bumped down the list in terms of access to the treatment. This has been expressed in a number of different ways by a number of presenters who have come forward.

This amendment is an attempt to ensure here, together with a number of the provisions in the rights sections which have been stood down, which talk about access to treatment in a timely fashion-there are a number of variations of that there-to make it clear that a prerequisite of getting comprehensive mental health services in the community is not being placed on the community treatment order. I offer the amendment in that spirit.

Mrs McLeod: We have agreed with the concern, and certainly heard it during committee presentations, that this 5% may take priority over the other 95%. We had proposed this in our original list of suggested amendments and dropped it in favour of, for our purposes, including it as one of the rights.

The Chair: Further comments? Seeing none, I'll put the question.

All those in favour of the amendment? Opposed? The amendment is lost.

Number 65, Ms Lankin.

Ms Lankin: I move that section 14 of the bill be amended by adding the following section:

"Mandatory services

"33.10(1) The minister shall establish a list of mandatory community treatment services to be provided by all regions, as prescribed.

"Standards

"(2) The minister shall develop and establish standards for community treatment services, as prescribed.

"Regulations

"(3) The minister may make regulations prescribing mandatory community treatment services and standards for such services."

In the presentations we received and in the verbal questioning of witnesses, I put the proposition of the establishment of a mandatory list of the minimum services that must be made available in all regions, and standards being developed for that; I put that idea forward.

There was, as I recall, every time I raised it, unanimity in agreement with this proposal. Those who were the strongest proponents of the legislation, for example, representatives of the schizophrenia association, agreed with it; psychiatrists who came forward agreed with it; psychiatric survivors agreed with it; family groups that were opposed to this legislation agreed with it. There was not a detractor from this concept.

I pointed out on a number of occasions that there is precedent in the province with respect to this. The Long-Term Care Act, which was passed by the New Democratic Party when in government, set out actually in the legislation the list of services. They actually named the services under areas of nursing care and personal care homemaking that must be made available to the multiservice agencies in that legislation in all regions of the province. It was part of an attempt to (1) acknowledge that there is a huge differential across the province in terms of what is available for people, and (2) establish a minimum list, a basket of services that the government must ensure is there and available. It is an accountability provision back on the government. The government has the responsibility for this.

It has been recommended in submissions that we received, for example, from the RNAO, that this is an essential provision that must be contained within the bill in order to make community treatment orders work, to ensure that there isn't the regional differential etc.

I have effectively gone light on the government with this amendment in that I have not specified those services in the bill and have suggested that those services will be delineated in regulation, which gives the government some time to develop an appropriate list, to do the consultation around that and put forward a list which can be added to over time, as government provides additional resources to the community sector.

We have heard over and over again from all those who were in support of this legislation that one of the biggest concerns about the ability to have this legislation live up to its intent is the problem of lack of resources, and the fact that at this point in time it is estimated that we are about $600 million shy of what is required in the community alone to effectively meet the need of persons with mental illness and, within that, the subsection to be able to implement comprehensive base services for community treatment orders.

For me, the willingness of the government to take some accountability themselves with respect to this legislation, to ensure that this is about accessing treatment and it's not about simply pushing public safety hot buttons, is judged by their actions in a few key areas. I have been disappointed that to this point there has not been a movement on the part of the ministry to cause a revisiting of the orders of the Health Services Restructuring Commission and their recommendations with respect to psychiatric beds, for example. The numbers that have been determined through that process were based on existing legislation and experience under the existing provisions of involuntary committal and voluntary seeking of services. We know that with a broadening of the involuntary committal criteria in other jurisdictions, like Washington-in a study that comes from there-there was a huge increase, of over 50%, in need and demand for psychiatric beds. The number crunching that led to the recommendations of the Health Services Restructuring Commission needs to be revisited at this point in time-it's a no-brainer to me-and yet there's not been any action on that.

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The repeated calls for establishment of sufficient community resources and the repeated assertion that we are about $600 million shy is very worrisome to me, both in terms of adequate level of treatment and access to timely treatment for the whole population but in particular with respect to regional variation and the ability to utilize the good intent of the community treatment order as has been put forward by the government.

I am not telling the government what those services shall be. I am not telling them what the standards shall be. We're setting out a process for those to be developed in regulation through whatever process the government wants-collaborative consultation-and through a process where it starts with a certain list that can be augmented over time as resources are available. What I am saying is that as a committee we should have the will to insist that governments of all stripes, now and into the future, be accountable enough to list what the basic expectation of themselves is with respect to these services in the community and that those resources, on a minimal and growing basis over time, be provided equitably across the regions of this province. That's the intent of this amendment.

The Chair: Any further comments? Seeing none, I'll put the question. All those in favour of this amendment?

Ms Lankin: Can we have a recorded vote, please?

AYES

Lankin, McLeod, Patten.

NAYS

Clark, Dunlop, Munro, Wood.

The Chair: The motion is lost.

Ms Lankin: Mr Chair, I would just like to indicate that, although no one has violated any orders, I find it incredibly disrespectful that there isn't even a response from the government when they choose to vote against something that I put forward as serious as this matter.

The Chair: Ms Lankin, I can tell you, having chaired approximately 20 bills, there's no obligation for responses-

Ms Lankin: I acknowledged that.

The Chair: -from either party to amendments from any of the three parties.

Mrs McLeod: Again, it was one of the amendments that we had indicated an intention to bring forward. It was my understanding that the government was prepared to look at regulations and I really would have appreciated some indication that those regulations will be forthcoming.

Mr Clark: We will be looking at regulations through the implementation period. In terms of the service itself, we've put in the act itself-and I know we'll be getting back to that question so very briefly-that the physicians themselves had to make sure the services were in the community before they issued the community treatment order. We were trying to put some accountability in it. We are trying to develop the services and the implementation, recognizing that there needs to be some consultation with the local governance structure of the district health councils etc. It's not meant as a slight; I'm conscious of the time, however.

The Chair: We're at page 66, Mr Clark.

Mr Clark: I move that clause 35(3)(d.1) of the Mental Health Act, as set out in section 15 of the bill, be amended by striking out "care or treatment" and substituting "treatment or care and supervision."

It's just the consistency of language again.

The Chair: Any further comments? Seeing none, all those in favour of the amendment? Opposed, if any? The amendment is carried.

Shall section 15, as amended, carry? Carried.

That takes us to number 67.

Mr Clark: I move that subsection 35.1(2) of the Mental Health Act, as set out in section 16 of the bill, be amended,

(a) by striking out "care or treatment" and substituting "treatment or care and supervision"; and

(b) by striking out "caring for or treating the person" and substituting "treating, caring for and supervising the person."

Again, it's consistency of language.

The Chair: Any comments? Seeing none, I'll put the question. All those in favour of the amendment? Opposed? Carried.

Number 68.

Mr Clark: I move that subsection 35.1(3) of the Mental Health Act, as set out in section 16 of the bill, be struck out and the following substituted:

"Disclosure

"(3) Except as provided in subsection (1), no person shall disclose the fact that a person is being considered for or is subject to a community treatment order without the consent of the person or the person's substitute decision-maker.

"Definition

"(4) In this section,

"`regulated health profession' means a health profession set out in schedule 1 of Regulated Health Professions Act, 1991."

This was an item that was recommended by both the Liberal and the NDP members during committee hearings.

Ms Lankin: Just a question: Did the ministry follow up on my suggestion to contact the privacy commissioner and have the privacy commissioner's office comment on this?

Ms Schell: No, I haven't.

Ms Lankin: So we're about to pass a section on which we don't know whether there's a concern. I think we have to go ahead because we are likely to finish tonight; this won't be held over. I have raised this issue with the privacy commissioner, if only because I attended an event where she was the key speaker; and this was very recently, so there hasn't been the time. She was going to check to see if the ministry had contacted-I was under the assumption that that would be done, that her advice would be sought. Do we have any assurance from the privacy division of the Ministry of Health that this in fact takes in those community mental health services that currently aren't covered under any privacy legislation?

Ms Schell: I'd be happy to try and respond to that. First, I believe this motion is before you tonight specifically to respond to the concerns we heard with respect to ensuring that a person who might even be considered for a CTO has control over disclosure of that information, or that the person's substitute does. We have regulation-making authority here with respect to the information related to a CTO. I believe it's the government's intention to ensure that there are appropriate regulations in place. I believe the drafting of this covers everybody who might have this information. It does say "no person," and the intention was to catch people-"catch people" sounds a little bit pejorative, but the intention was to include people who are not subject to some other statutory duty, so non-regulated health professionals. That's why the language of "no person" was used.

Ms Lankin: Just a subsequent inquiry: The concern, as I had raised it at the time, was with respect to subsection 35.1(2), "Sharing of information," which reads, "Despite any other act or the regulations made under any other act, a member of a regulated health profession acting within the scope of practice of his or her profession or a member of the Ontario College of Social Workers and Social Service Workers or any other person named in a community treatment plan as participating in the care or treatment of a person who is subject to"-you may want to add "or supervision" there; you missed that one-"the order may share information with each other relating to the person's mental or physical condition for the purpose of caring for or treating the person in accordance with the plan."

My concern was that there are elements of the individuals who are contemplated within that in an Ontario psychiatric hospital who would, for example, fall under privacy laws. There are provisions within regulated health professions that guide the conduct of what a health professional may or may not do or disclose. Here we're saying that despite any of that these people can talk to each other and we include others named in a community treatment order, which includes a whole range of people in community mental health agencies and other community service providers who have no legislative requirements. They may have some work-related code of conduct, but there's no legislative requirement with respect to privacy protection.

The concern I raised was specifically about the sharing of that kind of information with people who are not covered in any way by legislation guaranteeing privacy and protection, and that there be a clause that imposes that duty on them. The clause that we have here indicates simply that "no person shall disclose the fact that a person is being considered for or is subject to a community treatment order."

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That may be useful in and of itself; it's not something that I thought of. It certainly brings out the possibility of discrimination against a person if someone out there knows that they're under a community treatment order. I'm talking about the sharing of personal medical mental health information among health care providers and service providers in the community who are not subject to any kind of privacy legislation that guarantees that they will respect the private medical information of an individual. Despite any other act or any other regulation made under any other act, we are ordering people to violate privacy with respect to medical information by releasing it to people outside of the realm of protective legislation. I have grave concerns about that, and I do not believe the language that is here actually addresses this concern. Although this is a useful provision that's being put forward, it does not address the concern that I raised.

Mr Clark: The intention was to address it here. The ministry is also now having to deal with the broader issue, the protection of privacy for health records for all, and we are. That's going to be a huge one. I've been informed this is apparently coming my way now.

The Chair: Congratulations.

Mr Clark: I've already thought of that; I'm being punished again.

I hear your concern. My bigger concern in your wishing that this was in here was to provide some needed protection for the patient. On the other side of the coin, we've got health care providers who are arguing, "We need to be able to share information." So we're back to that balance again that we've been struggling with all the way through. So that's the issue, and I've raised it already with the ministry, in terms of how do we deal with the protection of privacy for health care for all patients? These doctors are raising this during the consultations, at all the consultations, in terms of sharing information back and forth. They feel that it's inhibited even though they have the same patient.

Mrs McLeod: I appreciate the intention of the amendment was to strengthen the privacy protection, but since it says "except as provided in subsection (1)," it seems to me that the intention is lost because subsection (1) is the operative clause, and that opens it up without any restrictions at all. My particular concern in that section is that it says "despite any other act or the regulations made under any other act."

Knowing that you're about to undertake a review of the privacy provisions for other health care situations, I would be concerned that whatever you do with it is still not going to-this act precludes people with mental illness from falling under the other protection. I wonder why it's necessary to put "despite any other act." I understand why you might put it in, because there is the privacy act. But that's really sweeping language: "despite any other act, or the relations made under any other act."

Ms Schell: With the greatest respect, one thing that's being missed in this dialogue is the language of 35.1(1) and (2). It's quite specific to the limited purpose of sharing the information. There isn't any authorization here that's given by the language of "despite any other act or the regulations" that opens up the disclosure at large. It's for the purpose of implementing the community treatment plan. Since we're looking at 35.1(2), the intent of this language here is to deal with situations where regulated health professionals, in particular under their specific statutes, cannot disclose information about services that they've provided to an individual.

So, with the very greatest respect, I think that modifying language does cover off, perhaps-I hope-some of your concerns about how widely information could be shared. In addition to that, we've built in this duty of confidentiality. I've already mentioned that we have reg-making authority here that could more specifically address that smaller group of unregulated people who might have some involvement here.

Ms Lankin: Using your language, with the greatest of respect, the provision of sharing of information, both consultation being permitted under (1) and sharing of information under (2), absolutely-you're right-it gets at regulated health professionals who are prohibited by their colleges from speaking to another regulated health professional about a client without the client's consent. That's very clear.

I had a person in my office the other day with a complaint before one of the professional colleges. One of the bases there is that this professional picked up the phone, called another and later said that he had consent and couldn't provide the documentation because consent hadn't been given. So you are allowing for that to happen.

What you miss in your explanation is that you're allowing for that information to be shared with people in service agencies in the community who have no requirement on them to keep that information private. So it's one thing to say that it's for the purposes only of the CTO and that the regulated health professionals can't go any further because you're only giving them the ability to talk for the purpose of a CTO. You're right, they still have the legislation or their professional college or whatever that dictates the prohibition on sharing of information. But you have stepped outside the regime of any protection by requiring that information be shared with community agencies and service providers that have no protective legislation, no requirement on them at all, to maintain confidentiality about personal medical mental health information.

The provision that you put in here is simply that they can't disclose the fact that a person is under consideration or is on a CTO. That does not deal with the details of personal medical information which they will be given access to by virtue of this provision, compelling a sharing of information here, and no legislative requirement on them to keep that private.

I can't believe that the privacy commissioner, in looking at this, would actually sanction this. Someone may want to get on the phone and allow us to figure out how to deal with this, because I think this is a significant problem. I don't think you can pass it. If you want to deal with it at some point in the future with respect to the health information privacy and strike these sections, fine. Or if you want to amend this by only making reference to regulated health professionals and delete all references to service providers or community agencies, so that you are not compelling information to be shared there, then I think we could proceed at this point in time and try to fix it in the long run thereafter.

But right now, I believe you are setting up a situation where this information is going to be provided to individuals in the community who have no obligation to keep the information private, and the regulation-making power doesn't address this specific circumstance that you've set out in this clause.

Mr Sharpe: This is an issue I've worked on also for many years.

Interjection: Have you got a story?

Mr Sharpe: No, except for the attempts to have a broad-based health information statute for all health information no matter where found. I think the issue you're raising deals with second-hand disclosures of information by people who may not be under other constraints that would impact their ability to practise if they improperly breached the disclosure concerns. There may be employment consequences, I suppose, as part of the job in the agency, or maybe not.

It's true that we are and have been working for some time on a personal health information protection act and have consulted the privacy commission in that regard, and they've provided very helpful comments. The only way to address the concern would probably be to put a provision in here that says, "Anyone who receives information in the course of a need-to-know basis where they have to have the information to assist in providing the care necessary is under an obligation to keep that information confidential and private."

Ms Lankin: That's what I was hoping for and what I thought was going to be drafted and brought forward. What is here is useful but it misses that mark. That's the clause we need.

The Chair: Any further comments?

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Ms Lankin: May I ask, Mr Clark, what your intention is? Could we ask counsel, while we continue, to step out and try to draft that particular clause to ensure that this information is protected?

Mr Clark: At this point, as I read it, the identification that says "no person" seems all-encompassing to me. I understand your concerns-

Ms Lankin: No, Mr Clark, may I please? It says "no person"-read on.

Mr Clark: If I might actually be able to finish a statement-

Ms Lankin: But look at what it says "no person" can't do. Please, just look at what it says.

Mr Clark: Ms Lankin, I have. We have to disagree.

Ms Lankin: Are you telling me that this language, in your opinion, provides that no person shall disclose any personal medical information that they may receive from a regulated health-

Mr Clark: I didn't state that. I stated, as it reads, "no person shall disclose the fact that a person is being considered for or is subject to a community treatment order without the consent of the person or the person's substitute decision-maker."

This issue came about as a direct result of physicians who want to share information back and forth. We're also trying to deal with the fact that there are other people who do not fall under the Regulated Health Professions Act. That's why we put this information in here. I am confident that, at this particular point in time, this does deal with the issue and we will have to deal with it in more detail for the entire Ministry of Health at a later date, which we are now in the process of starting.

Ms Lankin: I'm actually not prepared to leave this at this point in time, because the clause that's before us prohibits an individual saying that someone is considered for or subject to a community treatment order. The clauses in the legislation allow for regulated health professionals, who have requirements in terms of protecting privacy, to share information with each other and to share information with service providers and community agencies who have absolutely no restriction on what goes on with that information once they receive it.

By virtue of passing these sections, you are allowing for private medical information to be given outside of the realm of regulated health professionals, where it is now protected, into the hands of individuals in the community who have no obligation to protect it-and I understand the need for people to be able to share information-without putting a clause in there that prohibits the sharing of that information or revealing that information outside of those service providers or community agencies that are participating in the care of a patient who is subject to a community treatment order. Without that provision, you are ordering a regime which allows personal, private medical information to get into public hands.

I don't think you want to be doing that, with a lot of respect. I know it's getting late and we're tired, but I don't think that's what the government wants to be doing. I don't think you'll like the response from the privacy commissioner. You might want to remember Bill 26 and what happened with the response from the privacy commissioner where you stepped over the line. I think allowing counsel to find five minutes to draft the one sentence that it takes to fix this would be a worthwhile investment.

Mrs McLeod: It seems to me there is an easy resolution of this. The suggestion Mr Sharpe has made protects what you needed to achieve in terms of allowing a specialist to share information for the community treatment plan and allows that to be brought in to include non-health professionals.

Mr Clark: We'll stand it down for a moment, please.

The Chair: Mrs McLeod informs me that she is ready to go with a revised number 63.

Mrs McLeod: My understanding is that all parties have agreed to this, so it's a matter of reading it into the record and taking a vote.

The Chair: First you must withdraw your original motion.

Mrs McLeod: I withdraw my original-

Mr Clark: I'm sorry, I don't even know where we are.

The Chair: We're at number 63.

Mrs McLeod: We agreed upon the wording on the review, so I will withdraw the original amendment and propose the following.

I move that section 14 of the bill be amended by adding the following section to the Mental Health Act (after section 33.8 of that act):

"Review

"33.9(1) The minister shall establish a process to review the following matters:

"1. The reasons that community treatment orders were or were not used during the review period.

"2. The effectiveness of community treatment orders during the review period.

"3. Methods used to evaluate the outcome of any treatment used under community treatment orders.

"First review

"(1.1) The first review must be undertaken during the third year after the date on which subsection 33.1(1) comes into force;

"(2) A review must be completed every five years.

"Report

"(3) The minister shall make available to the public for inspection the written report of the person conducting each review."

Mrs Munro: In trying to follow along, it seemed to me that the word "thereafter" was left out after the "five years," in the second sentence that you read.

Mrs McLeod: I'm reading what legislative counsel has put in front of me. Sorry, I'm not seeing "thereafter."

Mrs Munro: No. That's why I'm asking, whether it should be there.

Mr Clark: It was redrafted.

Ms Schell: I think the concern that's being raised here is that there's a review that is undertaken within the third year and then a review five years after that. I share your concern. The wording I heard read was that it would be three years and then two years later.

Mrs McLeod: I'm sorry. It is there and I went right through as opposed to reading,

"Subsequent reviews

"(2) A review must be completed every five years...."

Interjection.

Mrs McLeod: It says, "subsequent reviews," which I think is the same as "thereafter."

Mrs Munro: That's fine.

The Chair: For the record, it was Mr Patten who reintroduced the motion.

Mrs McLeod: I'm sorry.

The Chair: That's OK. It's my error. Any further comment? Seeing none, I'll put the question. All those in favour of the amendment? Carried.

Ms Lankin, you indicated you had held down 62.

Ms Lankin: The amendment on 62. In light of the passage of the amended motion before us, I will withdraw.

The Chair: Number 62 is withdrawn.

Are there any amendments to sections 17 through 20? Seeing none, shall sections 17 through 20 carry? Sections 17 through 20 are carried.

Number 69, Ms Lankin.

Ms Lankin: I move that subsection 39.1(4) of the Mental Health Act, as set out in section 21 of the bill, be amended by inserting "and on the occasion of every second renewal thereafter" after "for the second time."

Subsection 39(1) of the act, as set out in the bill, reads, "an involuntary patient or any person"-am I in the right section? No. I'm looking for subsection (4). Sorry.

The Chair: If it's of any assistance, Ms Lankin, number 70 seems to embrace your suggestion. I'm at a loss to understand why yours actually came first.

Ms Lankin: Because mine is simply the change in the words. The government motion reprinted the whole section. It's just a stylistic approach.

I'm sorry, but if you could just give me a moment, I want to make sure that I'm actually looking at the right page in the bill. Starting at the beginning, it's actually at the bottom.

As I understand it, the government motion will accomplish this, but so will my amendment. Perhaps I could ask counsel if there is anything different in the government motion.

Ms Schell: Actually, when you flagged this problem with subsection (4), which was a drafting error and immediately became apparent, we took another look at 39.1. We haven't just repeated what is already existing in the bill; we've added a number of things which we hope will significantly improve this section.

Subsection (4) at page 70 addresses your concern that there isn't a specific requirement for the physician to give notice to the board on the occasion of each second renewal.

Ms Lankin: OK, I see that.

Ms Schell: Then we looked at section 39 of the Mental Health Act, which is the section that sets out the rights to apply, and procedural rules with respect to involuntary commitment. There are rules in there that call for automatic and mandatory review, and we added those provisions, or very similar provisions, to 39.1.

Subsection (5) would indicate that the person's entitlement to an automatic review cannot be waived, or a purported waiver is a nullity. The intent there is that if somebody is perhaps badgered into not going to the board, that doesn't count; the board goes ahead anyway.

Subsection (6) adds the board's specific jurisdiction to confirm or revoke-pardon me-to hold the hearing promptly.

Subsection (7) adds the board's jurisdiction to confirm or revoke.

Subsection (8) indicates that the board's decision applies to the CTO that is in force immediately before the making of the order.

Subsection (9) adds the parties.

1930

Subsection (10) might be a little bit inexplicable without referring back to the legislation, but what that does is it adds all the quorum requirements for the board, and the procedural and appeal rules that apply to involuntary status hearings are all brought in. The distinction in terms of quorum requirements is that there are a lot of instances under the Health Care Consent Act where a single member of the board can decide matters, but for involuntary status it always has to be at least a three-member panel, including a lawyer, a psychiatrist and a community member. So all of this reconsideration was triggered by your very astute observation that subsection (4) doesn't do what we intended, so we've added that.

Ms Lankin: It's not that late that you have to butter me up, Diana.

Ms Schell: I'm not sure if it's butter or what makes the roses grow, Frances.

Ms Lankin: Exactly. I was being polite.

May I indicate, Mr Chair, that in light of my concern being addressed by the government motion, I withdraw my amendment and indicate my support for the government's motion.

The Chair: Number 69 has been withdrawn. Mr Clark, could you read into the record number 70, please.

Mr Clark: I move that subsection 39.1(4) of the Mental Health Act, as set out in section 21 of the bill, be struck out and the following substituted:

"Notice to board

"(4) When a physician renews a community treatment order for the second time and on the occasion of every second renewal thereafter, he or she shall give notice of the renewal to the board in the approved form.

"Waiver

"(5) A waiver by the person who is subject to the community treatment order of an application or of the right to an application mentioned in subsection (3) is a nullity.

"Review of community treatment order

"(6) On the hearing of an application, the board shall promptly review whether or not the criteria for issuing or renewing the community treatment order set out in subsection 33.1(2) are met at the time of the hearing of the application.

"Confirm or revoke order

"(7) The board may, by order, confirm the issuance or renewal of the community treatment order if it determines that the criteria mentioned in subsection (6) are met at the time of the hearing, but, if the board determines that those criteria are not met, it shall revoke the community treatment order.

"Application of order

"(8) An order of the board under subsection (7) applies to the community treatment order in force immediately before the making of the board's order.

"Parties

"(9) The physician who issues or renews the community treatment order, the person subject to it or any other person who has required the hearing and such other persons as the board may specify are parties to the hearing before the board.

"Procedure

"(10) Subsections 39(5.l)(6) and (7) apply to an application under this section with necessary modifications."

The Chair: Are there any further comments on this section? Seeing none, I'll put the question. All those in favour of the amendment? Opposed, if any? The amendment is carried.

Shall section 21, as amended, carry? Section 21, as amended, is carried.

Is there any debate on or amendments to sections 22 through 27? Seeing none, shall sections 22 through 27 carry? Sections 22 through 27 are carried.

Mr Clark: Mr Chair, there's a replacement for item number 68. If I can read it in, there's been an agreed-upon amendment. It comes from our side, which doesn't imply anything. If I may just read the amendment that's being suggested, that we include,

"Prohibition

"(3.1) a person who receives personal information under subsection (1) or (2) shall not disclose that information except in accordance with this section."

The Chair: In the interest of time, does the committee allow Mr Clark to simply add that to his original motion rather than withdraw and reread it? Fine. If everyone is agreed to that amendment to the amendment, I'll put the question on the now-amended amendment. All those in favour of the amendment carrying? Opposed, if any? Number 68 is carried.

Because of that, shall section 16, as amended, carry? Section 16, as amended, is carried.

We'll go back to number 72, a Liberal motion, Mrs McLeod.

Mrs McLeod: I move that the bill be amended by adding the following section:

"27.1 The Act is amended by adding the following part:

"PART III.1 Mental Health Advocacy Office

"Mental Health Advocacy Office

"61.(1) The Mental Health Advocacy Office is hereby established as a corporation without share capital.

"Composition

"(2) The Office is composed of such persons as the Lieutenant Governor in Council may appoint.

"Objects

"(3) The following are the objects of the office:

"To coordinate and administer a system of advocacy and rights protection for persons who are receiving or seeking psychiatric or other mental health services.

"2. To advise the Minister about matters and issues concerning the interests of those persons.

"3. To exercise the rights and perform the duties assigned to the office under this or any other act."

In discussion with Mr Patten and Ms Lankin, recognizing that there is an NDP motion immediately following this that also seeks to establish a mental health advocacy office, and recognizing that this is a point at which we depart from practising the art of the possible, I suspect, I nevertheless feel really strongly about the establishment of a mental health advocacy office. I believe this is an opportunity to amend the Mental Health Act to provide, for the first time ever, an independent body which can advocate for those with mental illness and ensure that there is advice being given to the minister on the needs of those who require treatment for mental illness. So we put this forward. I will acknowledge quite shamelessly that I have stolen it from the Psychiatric Patient Advocate Office and I appreciate legislative counsel having put it into appropriate form, but with all of that, I and Mr Patten would be prepared to withdraw the amendment and consider the NDP amendment which is to come next and keep our discussion on one amendment.

The Chair: Amendment 72 is withdrawn. Ms Lankin, that takes us to your amendment, page 74.

Ms Lankin: I move that the bill be amended by adding the following section:

"27.1 The act is amended by adding the following part:

"Part III.1

"Office of Mental Health Advocacy

"61. There is hereby established the Office of Mental Health Advocacy as an office of the ministry.

"Objects

"62. The duties of the office are,

"(a) to advise the minister on matters and issues concerning the interests of persons with mental disorders;

"(b) to conduct a systemic review of the mental health system and its ability to meet the needs of those who receive or seek approved services, including,

"(i) a review of the adequacy of service delivery,

"(ii) a review of the effectiveness of the implementation of services,

"(iii) a review of community treatment orders and their effectiveness, and

"(iv) a review of the use or lack of use of community resources.

"(c) to report the findings of the systemic review to the ministry in the form of an annual report and to the Legislative Assembly in the form of an annual public report;

"(d) to conduct a thorough review of the provisions of the act relating to community treatment orders and community treatment plans five years after they are proclaimed; and

"(e) to perform any duties and functions conferred on the office under this act, the regulations made under it or under any other act and the regulations made under it."

Before I speak to the overall rationale, I understand there would need to be a minor amendment, given that we have passed the review provisions with timelines of the first review being three years and then five years after that. That would not be consistent with the provision "to conduct a thorough review of the provisions of the act relating to community treatment orders and community treatment plans five years after they are proclaimed." That section could be deleted and (e) could be renumbered (d). That still would ensure that the Office of Mental Health Advocacy is the office that actually conducts the review that's been set out in the other section that has been earlier passed.

Let me make it very clear that I am not looking to seek to re-establish a different or somehow re-jigged Psychiatric Patient Advocate Office. I believe the role of that office is an important and valued one in the system. It remains independent in its structure as a corporation without share capital. It is independent in its ability, through a memorandum of agreement with the ministry, to provide advice and to provide criticism where necessary of ministry-provided services. It provides a valuable role as a patient advocate and should remain and should do that. I understand that, as we seek changes in services being provided in psychiatric facilities to shift to psychiatric boards of general hospitals, there is a process in place in which the protections and the role of the patient advocate office is being imported or exported along with the treatment officers for those patients.

1940

What I seek to establish here is an office that has responsibility for a systemic review of the mental health system. It is akin to the office of the child advocate, which exists under Ministry of Community and Social Services legislation and within the purview of that ministry. It is an office which hears concerns, which acts upon them to investigate and which looks at the matters raised in a systemic way.

One of the things we know, although there have been many reports and many plans for reform of mental health-as I cited earlier, mental health often remains the poor cousin in the health system. There is a need for a systemic advocate. As we see a shift in where resources are being provided, where treatment is being provided and where we have interaction between the facility and that community, there is a need for someone to talk about the integration of those services, a seamless system and the way we are or are not successfully implementing those.

One of the things we are aware of is that there is a large difference of opinion in the mental health field about resource allocation between many people who are facility-based and many people who are community-based. That actually reflected itself in some ways in some of the polarized views about this legislation. There is a need at some point, placed within the ministry, for someone who is not viewing the polarized world but who is viewing the whole world of the patient and understanding the system as it relates to the patient and as it meets the patient's needs.

I believe very strongly that the ministry will be helped by this. The minister will be helped by having this kind of systemic review, advice and public reporting that allow a minister to argue at the cabinet table and at treasury board the need to maintain resource allocations and move towards greater integration of facility-based and community-based services.

If there is objection to this, I would like to understand what that objection is. There is not a huge resource allocation here. If you look at the office of the child advocate, it is very sparse in terms of what has been put there. This is not an intent to recreate the advocacy commission, which the government I was part of brought in and believed was important both in terms of individual advocacy and systemic advocacy. That was rejected by this government. I haven't tried to recreate that. I'm talking about an individual office that is charged with what I think is a very important responsibility.

I've indicated in discussions during the hearings that this does exist in other jurisdictions. There are some US jurisdictions where this role has been formalized through legislation through state regulation, and in British Columbia this position has been created, implemented and is underway, and they are now looking at the actual legislative amendment required to give it legislative statute authority.

To me, this is a necessary compendium to the legislative initiatives we have before us to ensure that broadening provisions of involuntary committal and bringing in new community committal criteria are implemented in a system where we are working together between the facility- and the community-based and where the polarities that now exist do not get in the way of developing a seamless system that meets the whole needs of the patient. I hope that if there is not support from the government, I will be able to hear some of the reasons this provision may be rejected and be able to respond to those.

Mr Clark: Very quickly, we're currently working with the PPAO in terms of what their mandate is now going to be, considering the fact that the entire system is changing. We're divesting ourselves of provincial psychiatric hospitals. There are going to be responsibilities for general psychiatric hospitals. I've been on the phone a number of times with Vahe, trying to get an understanding of what their role is going to be in terms of community treatment orders. So there is a review that is currently underway with the provincial psychiatric advocacy office, and it's still ongoing and hasn't crystallized. So don't take by my opposing your motion that we're opposed to what you're proposing. I'm stating very clearly and on the record that we are currently reviewing that entire process. There is an advocate's office there, and we're trying to figure out how that mandate is going to fit with everything we're doing in terms of developing that continuum of care for psychiatric facilities in the community. That's what we're trying to accomplish.

Ms Lankin: Can you go so far as to give a commitment at this time that the result of that review will be to establish a responsibility for systemic advocacy as opposed to simply understanding how the role of patients' rights advocacy, which is the current mandate of that office, is continued under the new model of service delivery?

Mr Clark: I can go so far as to say that it's been under discussion with Vahe. I don't know what the final outcome is going to be, because it's an ongoing work in progress. It has been under discussion; however, I don't know how it's all going to shake out. My concern is that we end up creating a duplicate process here.

Mrs McLeod: I'm glad to see you working with the PPAO, because that was brought forward to the committee: the recommendation that there be a mental health advocacy office and that it have a broader role in terms of advice to the minister. In fact, their recommendations included what was in our amendment, which was that that office would coordinate the work of the psychiatric patient advocate. I think that's absolutely essential, and I'm not going to take the time of the committee this evening to repeat the speech I made in the House, but this has been one of my very real concerns. We haven't opened the Mental Health Act since 1972. We've had all kinds of studies from all three governments, and inevitably mental health ends up on the back burner. I think the reason it does is because the people who need the support of the mental health system are not in a position to advocate strongly for themselves, and that's not as true in many other areas of the health care system, except maybe for long-term care.

I think we need to have a way of ensuring that not just this government but all future governments, because we've all been at fault with this-that there is an independent body that will keep the issues of mental health and the needs of those with mental illness constantly in front of us. So I hope that if this can't be passed tonight-and I think the intent is not binding on the government other than to have that kind of advocacy in place. If it can't be passed tonight, I trust there will be a broadening of the PPAO so that it's not just about the rights of individuals who are in the system but about the system itself.

Ms Lankin: Let me say I appreciate that the review is underway, and I hope that is successful in ensuring that ongoing patient advocacy takes place by a group that is very well experienced. To my way of thinking, it is necessary at this point in time to divide the issue of patient advocacy from systemic advocacy. I believe it is necessary to have systemic advocacy within the legislation and an office that is mandated by legislation to have public reports to the Legislature. I believe it gives it the import of positions like the Environmental Commissioner and others who report, and the office of the child advocate, who is not an officer of the Legislature but whose reports are taken seriously by the media, the public and legislators alike.

I believe that just by virtue of the way the government has dismissed the concerns the patient advocacy office has brought forward with respect to the actual amendments now in front of us, that indicates there is not the same level of response accorded to individuals who are involved in individual advocacy. It's something that has been referred to by people speaking to this bill on second reading as a group of activists and not families, and therefore people who should not be listened to.

I want to stress that I believe this amendment stands alone for the provision of systemic advocacy. It is something that exists in other jurisdictions. It's been brought into law in British Columbia. The first report of the advocate there had quite an impact on the government, in terms of holding them accountable to previous commitments and bringing about changes in resource allocations. I think it could do the same thing here. I trust that this is an issue I will continue to return to in the future if it's not passed here tonight.

The Chair: Any further comment? Seeing none, I'll put the question.

AYES

Lankin, McLeod, Patten.

NAYS

Clark, Dunlop, Munro, Wood.

1950

The Chair: That motion is lost.

I'm going to rule that the motion on page 76 is out of order. Unless I hear otherwise from the floor, we will move on to number 77.

Mr Clark: I move that clauses 81(1)(g.1) and (g.3)-

The Chair: Forgive me. I beg your pardon, Mr Clark, we missed one section.

Are there any amendments to section 28? Seeing none, shall section 28 carry? Carried.

I beg your pardon, Mr Clark. Could you resume?

Mr Clark: I move that clauses 81(1)(g.1) and (g.3) of the Mental Health Act, as set out in subsection 29(4) of the bill, be struck out and the following substituted:

"(g.1) respecting and governing community treatment orders, including the qualifications required for issuing such orders, additional duties of physicians who issue or renew such orders, additional duties of physicians who consent to an appointment under subsection 33.5(2) and additional duties of persons who agree to provide treatment or care and supervision under a community treatment plan;

"(g.3) designating persons or categories of persons who may agree to provide treatment or care and supervision under a community treatment plan under subsection 33.5(3) and prescribing the qualifications or requirements that a person must meet before he or she provides such treatment or care and supervision."

The Chair: Any comments? Seeing none, I'll put the question. All those in favour of the amendment? Opposed, if any? The amendment carries.

Shall section 29, as amended, carry? Section 29, as amended, is carried.

Are there any comments on or amendments to sections 30 through 45?

Ms Lankin: Could you wait a moment, please? Could I get some guidance? Are all those sections of the bill within the Mental Health Act being moved into the Health Care Consent Act?

The Chair: We're in the Health Care Consent Act now. Actually no, that's not true.

Interjection.

The Chair: Actually yes, we start at section 30.

Ms Lankin: I'm sorry, Mr Chair?

The Chair: Section 30 is the start of the Health Care Consent Act.

Ms Lankin: And you're requesting which sections?

The Chair: Sections 30 through 45, looking at the amendments that have been given to us.

Ms Lankin: There are provisions in there that I would like to speak to, to urge people to vote against certain sections-

The Chair: Is there a specific section?

Ms Lankin: Let me just find the section. I will want to speak to section 33 and-

The Chair: Are there any comments or amendments to sections 30 through 32? Seeing none, shall sections 30 through 32 carry? Sections 30 through 32 are carried.

Section 33. Any comments?

Ms Lankin: Yes, Mr Chair. Section 33(1) talks about individuals who are making an application to depart from prior capable wishes that an individual has made. Clause 33(1)(b) indicates that "the health practitioner who proposed the treatment may apply to the board to obtain permission for the substitute decision-maker to consent to the treatment despite the wish." You'll notice that clause (a) is the existing ability of the substitute decision-maker to "apply to the board to apply to the board for permission to consent to the treatment despite the wish." As I understand it, what's new here is the health practitioner being able to make that application.

I will repeat the concerns, or I will state that I have the same concerns with respect to a later provision that allows a care facility to apply to the board on behalf of the substitute decision-maker as well. I believe that the system that's there, that stands-the explanation that was given to me is that sometimes it's hard for a substitute decision-maker to go forward to the board and make the application, therefore a physician or a health practitioner should be able to do that on their behalf. If you're talking about seeking the right to depart from someone's prior capable wishes, I don't believe we should be doing anything to lessen the burden or the onus of making that decision and seeking that kind of action. I urge that this section be voted down, because the provisions within the existing act allow for a substitute decision-maker to do this. That will remain. If we vote this section down, what we will be stopping is passing on new powers to a health practitioner to make that application.

The Chair: Any further comments? I'll put the question on section-

Ms Lankin: Could I ask ministry counsel why there is no support for this and the rationale for this clause?

The Chair: We haven't had the vote, so it would be a little unfair to ask the ministry staff whether or not the members of the committee will vote a certain way.

Ms Lankin: The ministry has put forward this clause, and I'm asking for the rationale for-

The Chair: I'm sorry. I thought you meant the support within the committee.

Ms Lankin: No.

Ms Schell: I'd be happy to address that. All this provision does is allow a health practitioner to bring the application to the board. The board can consider whether or not to give the substitute permission to depart from prior capable wishes. The substitute is not required to do so, but I draw to the member's attention the fact that the matters the board has to be satisfied about here in order to give the substitute permission are very onerous. They're set out in subsection 36(3) of the Health Care Consent Act. If I could read in part, the board has to be satisfied "that the incapable person, if capable, would probably give consent because the likely result of the treatment is significantly better than would have been anticipated in comparable circumstances at the time the wish was expressed." The effect of this provision is that the substitute can be told of that determination by the board, but there's no requirement that the substitute go ahead and consent in accordance with the board's determination.

The Chair: I've been watching, and we've now had permission in the House to continue our sitting.

Any further comments? Seeing none, I'll put the question on section 33. Shall section 33 carry? Section 33 is carried.

Are there any comments or amendments on sections 34 to 45?

Ms Lankin: Yes, I will have comments on section 37.

The Chair: Any questions or amendments on sections 34 through 36? Seeing none, shall sections 34 through 36 carry? Sections 34 through 36 are carried.

Section 37.

Ms Lankin: Subsection 37(1) amends subsection 52(1) of the act. It strikes out a portion of a clause and substitutes the following:

"(1) A substitute decision-maker or the person responsible for authorizing admissions to a care facility may apply to the board for directions if the incapable person expressed a wish with respect to his or her admission to the care facility, but," and it carries on from there.

I feel more strongly about this than the last provision I raised. I agreed that in the last provision there is an opportunity for the substitute decision-maker to still determine whether or not to depart from the prior capable wishes. I won't repeat my objections; I still hold objections to that section. But in this section we're talking about where a person has expressed a desire or wish with respect to being admitted to a care facility. My concern here is allowing "the person responsible for authorizing admissions to a care facility." I believe I am correct that when I asked ministry counsel for a definition of "care facility" and we went back and looked, it included the rest and retirement home sector. That is an unregulated sector. Those of you who were in the House today know that this is an issue that I feel very strongly about and have been raising on an ongoing basis and asking for standards-of-care regulations. I believe the series of articles that we saw last October in the Toronto Star detailed the kind of abuse and neglect that is taking place in some parts of the unregulated rest and retirement home sector, a problem which has cropped up periodically over the decades whenever government has been in a situation of scarce resources to meet the needs of vulnerable seniors, which is the situation we're in now.

To allow people in that sector to have the right, on their own, dealing with what may be a vulnerable family desperately looking for a place to put a person, to seek to overturn prior capable wishes-I don't care how stringent the review board's criteria are, and I do recognize the important and viable work they do and how carefully they would consider such a request-but to give this kind of authority to that unregulated sector, given the litany of stories of abuse and neglect that exist, I can't comprehend that we would do that in this legislation.

I don't see it as a necessary piece of this legislation. It's not something that is at all part of the intent of the government with respect to the Mental Health Act, with respect to broadening involuntary committal criteria or with respect to creating community treatment orders. It was described to me by ministry counsel as a housekeeping, would-like-to-do type of amendment because it's been asked for by some people out in the sector there. I think it has not been widely consulted on. I think the impact of it has not been understood. I have spoken to some people in the seniors' advocacy field who were not made aware of this and who are horrified at the prospect, as horrified as I am. I believe that this provision should be defeated.

If the government does adequate consultation and comes forward with a rationale that they feel they can support, then it can come forward as an amendment to the Health Care Consent Act. It should not be contained and hidden in the context of this legislation. This is not part of, nor does it serve any purpose to, the main intent of this legislation.

Again, I would ask if Mr Clark would offer some response to those concerns.

Mr Clark: I'll defer to counsel.

Ms Schell: I recall your raising this question. I don't recall specifically telling you that these were unregulated facilities. We did seek advice from long-term-care counsel at the ministry when you raised that question and she has provided an answer with respect to what the definition of "care facility" consists of. There is, of course, a definition in the Health Care Consent Act and I think maybe I can serve everybody's purposes best simply by reading her response to the concern that we were talking about, unregulated facilities.

She says, "Care facilities are defined under the Health Care Consent Act as including the following:

"(1) an approved charitable home for the aged, as defined in the Charitable Institutions Act;

"(2) a home or joint home, as defined in the Homes for the Aged and Rest Homes Act; and

"(3) a nursing home, as defined in the Nursing Homes Act.

"Admission to these care facilities is governed by the provisions of long-term-care facility legislation: the Charitable Institutions Act, the Homes for the Aged and Rest Homes Act and the Nursing Homes Act. Admission to these facilities is permitted only when authorized by a placement coordinator. The placement coordinator is designated by the Minister of Health and Long-Term Care. The current placement coordinators in the province are community care access centres (CCACs). The proposed amendments to the Health Care Consent Act would permit CCACs to apply to the Consent and Capacity Board," in this case, for clarification with respect to a person's prior capable wishes. That's the provision that Frances has referred to.

The note goes on to say: "The Homes for the Aged and Rest Homes Act governs long-term care facilities that are operated by municipalities. There are no privately operated facilities under this legislation. (Although the legislation also provides for the establishment of homes by the council of a band, there are currently no homes operated in this manner.)"

My understanding of this advice from counsel in our office is that these are regulated entities and that it's the CCACs that would be authorized by this provision to make the application.

Ms Lankin: Could I just ask for assurance? Could someone check the language in the Health Care Consent Act, because I have the Mental Health Act but not the Health Care Consent Act with me.

When we looked at it and we read that, I did put it to one of the other counsel and had agreement that it included the unregulated rest home sector. If it doesn't, I withdraw all my concerns. Those concerns are met, but that's based on ministry advice.

2000

Ms Schell: I apologize if this wasn't clarified before now. The definition of "care facility" does include, and this is in the Health Care Consent Act at 2.1(b), "a home or joint home as defined in the Homes for the Aged and Rest Homes Act." This is referred to here in the note I have and this is legislation that governs rest homes. So we only have entities under the definition of "care facility" that are subject to statutory provisions. That's the best way that I can put it.

Ms Lankin: I'm sorry but I need to ask for one more clarification, because there is confusing terminology with respect to rest homes. In the past, there have been some regulations for rest homes with respect to rent controls and other things applying to them, and I'm not sure if under the Homes for the Aged and Rest Homes Act that's the only provision that's there, because the retirement and rest home sector is not regulated with respect to standards of care.

What I need absolute assurance of is that anyone admitted to any home under those pieces of legislation, including a rest home, can only be admitted through the CCAC process and that the regulation of the rest home under the Homes for the Aged and Rest Homes Act is simply the application of the division of care from tenancy issues and rent control issues. The Lightman report is what I'm referring to.

Ms Schell: That's a very broad question. All I can say about that is the statute covers what it covers. I think that the term "rest home" and other kinds of accommodation-sometimes that language is used generically. The act says that these are entities that are covered by statutes. I've read the note that indicates who can make the application. All I can say is the statute covers what it covers and it's fairly clear here.

I see legislative counsel nodding. If she has some further comments on this that might help us out, that would be great.

Ms Lankin: Only because I'm trying to absorb it quickly, the note does indicate that anyone admitted to a home under any of those pieces of legislation is admitted through the CCAC. So there's no one who falls outside of that. That's what that note says?

Ms Schell: The note says that the provisions of the act only apply to these things that are defined as care facilities, and they're specifically referenced by these statutes. I'd be happy to give you a copy of the note. I'm not trying to obfuscate-

Ms Lankin: No, no. It would be nice to have a copy, but that note indicates that the admission policies of all of the homes under those statutes are governed by the CCACs. That's what the note says; that's all I'm asking.

Ms Schell: Yes.

Ms Lankin: Thank you. I just wanted clarity. It's late and it's hard to absorb it all. I appreciate that; that satisfies my concern.

The Chair: Any further comments?

Seeing none, shall section 37 carry? Carried. Section 37 is carried.

Are there any comments on or amendments to sections 38 through 45?

Seeing none, shall sections 38 through 45 carry? Carried. Sections 38 through 45 are carried.

The next amendment up is number 78, Mr Clark.

Mr Clark: I move that the bill be amended by adding the following section:

"45.1 The act is amended by adding the following section:

"Immunity

"71.1 No proceeding for damages shall be commenced against the board, a member, employee or agent of the board or anyone acting under the authority of the chair of the board for any act done in good faith in the performance or intended performance of the person's duty or for any alleged neglect or default in the performance in good faith of the person's duty."

This came out as a result of a recommendation from the ministry's agency liaison office, and I think it pretty well speaks for itself.

The Chair: Any comments?

Seeing none, all those in favour of the amendment? Opposed? The amendment is carried.

Section 46: Are there any comments on or amendments to section 46.

Seeing none, shall section 46 carry? Section 46 is carried.

The next amendment is an NDP amendment. Ms Lankin.

2010

Ms Lankin: I move that the bill be amended by adding the following section:

"45.1 The act is amended by adding the following section:

"Power of attorney for personal care

"86. The public guardian and trustee shall accept a power of attorney for personal care where named as the attorney."

One of the concerns that the whole community treatment order provision raises is new powers and rights and obligations for substitute decision-makers. Substitute decision-makers are defined in a certain way in terms of who has the right of substitute decision. Some individuals do not have relationships with the statutory list of substitute decision-makers that are there that would allow them to feel comfortable with those individuals taking over decision-making power for them should they become incapacitated. In such cases, it is possible for an individual to name a power of attorney for personal care. That's normally a consensual thing. You seek to obtain an agreement from a person to do that, the forms are filled out, that person then is able to make decisions for you on your behalf if you become incapable with respect to your personal care.

One of the concerns I have that has happened and has been raised in the community that we are dealing with here are individuals who, for whatever reason, don't have anyone else to go to, to seek them to become their power of attorney to take this on, individuals who have lived on the street perhaps for a while or who have become geographically or emotionally removed from their family and do not accept that those individuals in the family could become the substitute decision-maker but want to go to an individual who would do that.

Currently, the office of the public guardian and trustee has the authority and the ability to take this on, but as a matter of course for a number of years, due to scarcity of resources-and I understand it completely-they have routinely rejected this, until most recently. There are a couple of cases where now they have actually taken on this responsibility, but they are in the minority and they do not meet the need that is out there. It would be impossible for the office to meet that need without the government providing the resources necessary.

We believe it is absolutely crucial that people have an alternative. Now that we are giving over decision-making about such things as committal orders in a community to substitute decision-makers, they must have the ability, if they have no confidence in the statutorily listed group of substitute decision-makers, to appoint someone. Given the population we're talking about, there may be many significant cases where there is no other individual, other than going to the office of the public guardian and trustee. We can no longer rely on the simple authority that that office may take it on. It must be something that we require of them when asked.

There are other requirements placed on this office as a result of this legislation. They have a special unit. There will be training. They will become proficient in the issues around community treatment orders. We believe that it is necessary for these patients to have a guaranteed alternative where they can go to a power of attorney for personal care.

Mr Clark: Just some clarification here, Chair. I did not talk to the power of attorney, the PGT. I didn't talk to them. As I understand it, they're governed under the Substitute Decisions Act, so I'm not sure whether this is actually in order.

Ms Lankin: It would be preferable to do it under the Substitute Decisions Act, but if I had written it that way, it would have been out of order since that section is not opened up. So one is constrained by the art of the possible here, Mr Clark. I think that down the road, it may be something that you may want to address that way, but right now we're bringing in community treatment orders that create a new situation and we need to give people this protection so that they are not left without an alternative to an unsatisfactory list of substitute decision-makers under that legislation, an alienated list, and not left to the goodwill of the guardian and trustee's office or, more to the point, being unavailable resources for them to take on this kind of workload, that it is in fact a mandated workload and therefore a necessary resource for government.

The Chair: Thank you. Any further comments?

Seeing none, shall the amendment carry? All those in favour?

Ms Lankin: Could I have a recorded vote, please?

AYES

Lankin, McLeod, Patten.

NAYS

Clark, Dunlop, Munro, Wood.

The Chair: The motion is lost.

The Legislative counsel advises me that actually we should be considering the Liberal motion next that you'll find at page 81.

Mr Patten: I move that section 47 of the bill be struck out and the following substituted:

"Commencement

"47(1) Except as provided in subsection (2), this Act comes into force on the day it receives royal assent.

"Same, provisions re community treatment orders

"(2) Subsections 1(2) and (9), sections 14, 15, 16 and 21, subsections 29(4) and (5) and section 30 of this act come into force on a day"-I won't repeat all those-"to be named by proclamation of the Lieutenant Governor, which day shall not be earlier than the day on which the Minister of Health and Long-Term care announces in the Legislative Assembly that an implementation plan relating to these provisions is in place."

We say that because we had some discussion about this and I believe that there was some acknowledgement on the government's part that yes, there was a need for an implementation plan. That can be done with the detail subsequently, but to make this announcement-that would be the time in which the review would kick in as the point at which the implementation plan is in fact in place.

This was recommended by the Association of General Hospital Psychiatric Services, psychiatric practitioners, psychiatrists. They felt very strongly that an implementation plan should be put forward.

We've talked about the method of evaluation and education to key stakeholders etc, that the implementation plan would be a compendium along with the bill but the government would not proceed until the implementation plan had been developed.

Mr Clark: It's obvious from the fact perhaps that the government has a motion in terms of setting this in force for December 1, 2000, which we'll be dealing with later on. The government's intention is to make it very clear that they're serious about this and moving forward with this. The date is set in stone and the implementation-we have to get on with this. The concern is that it's hanging out here until the implementation plan is in place. There's some urgency in getting on with the bill and making sure that the education and implementation process is on the way. That's why they set the date, that's all.

Mr Patten: One of the reasons for the implementation plan was that, given the vastness of Ontario, it may be all right to implement this. One suggestion was even that there may be signoffs from the nine different regional offices that say, "OK, we're ready," and the next one says, "We're not quite ready; we need five or six months," another one says, "Look, we're ready in two months," this kind of thing. In other words, if that's what an implementation plan would do, in the absence of that, you apply this and then it's, "OK, everyone who feels they want to exercise their right, away they go."

Mr Clark: With respect, I wouldn't read into it that that's not going to be the case in terms of the implementation plan and the timing of when it's going to be coming on line, what's going to happen. There will be a plan laid out, but the intention of the government is to make sure it is very clear in everyone's mind that they are moving ahead with it and the implementation plan will be released.

Ms Lankin: Just simply to say that we've heard from a number of witnesses about the need for the proper development of an implementation plan, from some of the people who are strongly supportive of this legislation, from some of the experts in the field of psychiatry, the community treatment program representative. None of them contemplated that this section of the legislation should be proclaimed by December of this year, that the education would be done or the resources would be in place. While I understand the government's desire to have an actual date as opposed to leaving it completely hanging, I think that is unacceptable. It may meet a communications objective on the part of the Premier's office in terms of the public safety aspect of this bill; it doesn't meet a good planning and implementation approach from the Ministry of Health and Long-Term Care, and I think the parliamentary assistant will find that as work begins on this. However, I suspect that that position will hold, so we may as well vote.

2020

The Chair: Any further comments? Seeing none, I'll put the question. All those in favour of the amendment? Opposed? The amendment is lost.

Mr Clark: Number 80: I move that section 47 of the bill be struck out and the following substituted:

"Commencement

"47. This act comes into force on December 1, 2000."

The Chair: Any comments? Seeing none, I'll put the question. All those in favour of the amendment? Opposed? The amendment is carried.

I have to put in the record that because the amendment on page 82 is identical to number 81, it's out of order.

Ms Lankin: It's not out of order for that reason. It was out of order because it was defeated and it's identical.

The Chair: Yes.

Ms Lankin: I just want to make that clear: The amendment was perfectly in order. That's why I gave support to the original. The intent and the wording is exactly the same, and we've dealt with those.

The Chair: Exactly. We'll just say "not moved" on the clerk's record.

Mrs McLeod: I would just like to put on the record, because it may be the only opportunity I have before we get into the final debate about the deferred motions, that I do want to express appreciation to Laura Hopkins for having taken the amendments from both ourselves and the New Democrats and put them into legislative form in a very short time frame. She was extremely co-operative and made herself available at any time at all. We have to say thank you. It made it possible for this process to work.

The Chair: Thank you very much for your comments, Mrs McLeod.

With that, shall section 47, as amended, carry? Section 47, as amended, is carried.

We might as well polish off the next two while we're here.

Clerk of the Committee (Mr Viktor Kaczkowski): You can do 48, but you can't call the long title yet.

The Chair: All right, we'll do the next one while we're here.

Shall section 48, the short title of the bill, carry? Section 48 is carried.

That takes us back to the first of our deferred amendments, which was number 9.

Mr Clark: Might I suggest, Chair, that we look at 33 first?

The Chair: If that is the favour of the committee.

Mr Clark: Does everyone have this now?

The Chair: I'm pleased to do that. You should have a replacement number 33.

Mr Clark, you'll have to withdraw your original 33 and read this one into the record. Oh, it wasn't put. I beg your pardon. So we're starting from a clean slate.

Mr Clark: I move that subsection 33.1(1) of the Mental Health Act, as set out in section 14 of the bill, be struck out and the following substituted:

"Community treatment order

"(1) A physician may issue or renew a community treatment order with respect to a person for a purpose described in subsection (1.2) if the criteria set out in subsection (2) are met.

"Same

"(1.1) The community treatment order must be in the prescribed form.

"Purposes

"(1.2) The purpose of a community treatment order is to provide a person who suffers from a serious mental disorder with a comprehensive plan of community-based treatment or care and supervision that is less restrictive than being detained in a psychiatric facility. Without limiting the generality of the foregoing, a purpose is to provide such a plan for a person who, as a result of his or her serious mental disorder, experiences this pattern: the person is admitted to a psychiatric facility where his or her condition is usually stabilized; after being released from the facility, the person often stops the treatment or care and supervision; the person's condition changes and, as a result, the person must be readmitted to a psychiatric facility."

Mr Chair, this is simply in keeping with trying to resolve the issue of the preamble, and having it in 33.1 is actually the intention.

The Chair: Any further comments?

Mrs McLeod: I appreciate the fact that it's an expansion of what we had before. It doesn't replace the bill of rights, in my view, but the hour is late and I won't proceed on the arguments around why I believe we need to have a bill of rights, or at least the principles that Mr Patten put forward earlier.

Ms Lankin: I think we will have an opportunity to deal with the bill of rights amendments that have been stood down, some of which stand separate from this. Let me say, with respect to the purpose clause, although I still believe we need to insert that it is a less restrictive treatment than detention into the criteria, and we'll have an opportunity to do that, the attempt to describe the pattern of treatment and experience of the individual is a very important step in attempting to narrow the clinical definition of the population that would be intended for CTOs to apply to, and it's a huge improvement over what was there. I thank the ministry and leg counsel and all who worked on it for taking our concerns seriously.

The Chair: Further comments? Seeing none, I'll put the question. Shall the amendment carry? Carried.

The next deferred amendment-we might as well stay on this section-was number 35, the NDP motion. Ms Lankin, did you have any further comments?

Ms Lankin: I withdraw that.

The Chair: Number 35 is withdrawn.

That would take us to number 36.

Ms Lankin: This is another version of the purpose clause, so I withdraw.

The Chair: Number 36 is withdrawn.

Number 37.

Ms Lankin: Have I read this into the record yet?

The Chair: Yes, it has been read.

Ms Lankin: This is an addition to 33.1 in the criteria section which adds a criterion that refers back to the purpose clause that was just passed. The purpose clause makes reference to providing treatment in a less restrictive manner than being detained.

This amendment reads: "For the purpose of determining what constitutes less restrictive treatment under subsection (1)"-which still applies-"with respect to a person for whom a physician is considering issuing or renewing a community treatment order under subsection (2), a physician shall have regard to the person's opinion as to what constitutes less restrictive treatment for him or her."

The reason for this is that we have a cultural bias, all of us in this room, assuming that a community treatment order in all circumstances would be less restrictive than being detained in a psychiatric hospital. That may not be the case for certain individuals. All we're saying here is that, for those individuals who are not capable of giving consent to the treatment plan themselves, because they have control of that, where a substitute decision-maker is involved, the physician will have regard to that opinion. It's not an overriding clause. It doesn't prohibit the physician from proceeding, but it indicates that, irrespective of the status of capacity of the individual, their experience and their real-life beliefs about what constitutes best treatment for them and least restrictive treatment for them must at least be heard and considered.

The Chair: Any further comments?

Mr Clark: We would be of the position that basically we're talking about informed consent, and it's under the Health Care Consent Act. The person who is agreeing to a community treatment order would be involved with the informed consent, and if it's the substitute decision-maker then they would be involved in that discussion.

Ms Lankin: If I may, I recognize you're absolutely right. The point I just made is that for that person who has been determined as incapable of giving informed consent and for whom the decision will therefore be made by a substitute decision-maker, this provision would compel that there still be a consideration of that person's opinion with respect to what is least restrictive for them. It is not overriding. They don't get to make the decision, but their opinion must be heard. Given the experience of individuals and the varied experiences of how they react to different situations, medications etc, they may feel that a medication-free detention in a psychiatric facility as opposed to a community treatment order with forced medication as part of it is less restrictive. They should at least have the opportunity to make that case and for that to be considered.

2030

The Chair: Any further comments? Seeing none, I'll put the question. All those in favour of the amendment? Opposed? The amendment is lost.

The next deferred amendment was number 39.

Mr Patten: This was the discussion on the involuntary basis. The only thing I would ask is whether the government has had any second thoughts about this.

Mr Clark: I'd like to refer to counsel. We've had some more consideration of this.

Mr Sharpe: I spoke to Dr Steve Connell, who I believe was a witness before the committee at one point. I think he's head of the Ontario Psychiatric Association. He had several concerns that I am passing on to the committee.

He gave the example of a current patient of his who is manic depressive. He said that when in the depressive stage of the psychosis, this patient had been admitted repeatedly as a voluntary patient. The patient is now in the manic phase of the illness and is acting out in a way that Dr Connell feels is destroying his life and wasting his assets, and is suffering significant mental deterioration. He feels this person would be a good candidate for a community treatment order, but if the past hospitalization had to be involuntary, this person would not qualify. So that was one case he gave.

He also said that many schizophrenics have a series of voluntary admissions, and that would disentitle them to be candidates for community treatment orders. He referred to the Manitoba experience. He had spoken to, I suppose, other psychiatrists in Manitoba and he found that, because they do have the provision of involuntary admission as a prerequisite for community treatment orders, these physicians have to involuntarily commit patients in order to have them qualify for CTOs. As a consequence, the rate of involuntary committal has increased, and this is viewed as a more restrictive approach.

Finally, when I suggested to him that many patients may not come to hospital voluntarily for fear of being placed under these community treatment orders, his view again was that he didn't agree with that. I am simply passing on his concerns to the committee about accepting an amendment that would limit the prior hospitalization to involuntary admissions.

Ms Lankin: I appreciate your making the effort to contact Dr Connell. I have the highest regard for him and work with him in my community on a number of issues. However, I believe he was very much involved in the drafting of this language in the first place, and I believe there are other issues that have been brought forward by others. Had you called them, you would have heard something very different. I understand we're limited by time. I point out that in the first example Dr Connell raised, with respect to the person suffering from a manic depressive disorder, there is the capacity, if the person is in the state that he is describing now, to involuntarily admit that person and release them under the leave provisions. He hasn't addressed that. That's not something he has been here to hear, this new provision being put in place.

Secondly, yet again I make this point: To suggest that someone would be in a situation for a CTO and that that be determined to be less restrictive than being detained, there has to be at some point in time in the person's history an experience in which they've met criteria for being detained. Not only do the CTO criteria not explicitly say that in terms of the existing state of the person-they only have to meet the referral form 1 criteria-it's not even saying that with respect to the past experience.

I think we have made the point over and over to the ministry that there is another mechanism through involuntary committal and use of the leave provision to address these individuals you're worried about. I believe there is a difference in philosophical opinion from those who are arguing for the broadest and most lenient and most flexible implementation of CTOs, those who are deathly opposed to it in the community and those of us who are in the middle trying to build the best balanced legislation.

The arguments I have heard put forward, while I understand their genesis and I have the highest regard and respect for them, I respectfully disagree that we, as a committee who have heard on balance significant evidence to suggest otherwise than that, should be bound by that opinion. But I truly do appreciate counsel's seeking that out for us tonight. I don't think it undermines the point that's been made by Mr Patten, Mrs McLeod and myself earlier.

The Chair: Thank you. Any further comments? Seeing none, I'll put the question. All those in favour of the amendment?

Ms Lankin: Could we have a recorded vote, please?

AYES

Lankin, Patten.

NAYS

Clark, Dunlop, Munro, Wood.

The Chair: The amendment fails.

That takes us to number 40.

Ms Lankin: I will read it into the record. It stands for itself. It deals with the same question matter that was just defeated.

I move that-

The Chair: I think it's already on the record, is it not? We haven't deferred any amendments without reading them into the record first. Can the clerk confirm that? Number 40 was read into the record?

Clerk of the Committee: I believe it was. I have your document.

Ms Lankin: It is another amendment with slightly different wording that would create the criteria of admissions in hospitals having been involuntary admissions. There is some other stuff in there, and at this point in time I'll just let it stand for a vote. A recorded vote, please.

AYES

Lankin, Patten.

NAYS

Clark, Dunlop, Munro, Wood.

The Chair: The amendment is lost.

If my records are correct, that allows me to then ask the question. Shall section 14, as amended, carry? Section 14, as amended, is carried.

That takes us back to amendment 9, which was deferred. A Liberal motion, Mr Patten.

Mr Patten: I will withdraw that because that has been dealt with under number 33.

The Chair: Thank you very much, Mr Patten. Amendment 9 has been withdrawn.

Amendment 10, another Liberal motion.

Mr Patten: I think we'll want a vote on this one. Lyn feels very strongly about it, and so do I. I've heard what the government has said, that they will proceed with that argument; when you do then you can withdraw this at that particular time. Anyway, we are ready to vote on it and I move it.

Ms Lankin: Has it been read into the record?

The Chair: It has been. All the amendments have been read into the record.

Any further comments? Seeing none, I'll put the question. All those in favour of the amendment? Opposed? The amendment is lost.

That takes us to the last of the deferred amendments, which is number 12.

Ms Lankin: This is the amendment which establishes rights of persons receiving mental health services, indicating that the people must be dealt with by service providers in a courteous and respectful manner, free from mental, physical and financial abuse; in a manner that respects dignity and privacy and promotes personal autonomy; in a manner that recognizes personal individuality and is sensitive to and responds to the person's needs, preferences, including preferences based on ethnic, spiritual, linguistic, familial and cultural factors; the right to be provided information about community services and be told who will be providing the service; and the right to timely treatment.

This is a rights section. It stands alone and separate from section 33.1, which deals with the clinical marrying of the community treatment orders and the patient population they would apply to. This is in respect of all persons receiving mental health services. In light of the section of the act which broadens the involuntary committal criteria and some of the other amendments that are outside of the community treatment order, we felt it was important that rights provisions be put in that deal with these services, whether they are in the community or facility-based, which is the reason for the language referring to persons receiving mental health services.

As I said, it's a stand-alone rights section separate from the purpose clause of 33.1, and I would hope there would be support for it.

The Chair: Further comments? Seeing none, I'll put the question.

Ms Lankin: Recorded vote, please.

AYES

Lankin, McLeod, Patten.

NAYS

Clark, Dunlop, Munro, Wood.

The Chair: The amendment is lost.

Shall section 2 carry? Section 2 is carried.

Clerk of the Committee: Section 2 has been done.

The Chair: I beg your pardon. We've just carried it a second time. OK, just confirming our good works earlier.

I'll be posing a question. From the debate I heard earlier, I don't know whether in fact it is the wish to continue to have a preamble in the bill, but because it's in the bill that's been sent to us, shall the preamble carry? No, the preamble does not carry.

Shall the long title of the bill carry? The long title of the bill is carried.

Shall Bill 15, as amended, be carried? Bill 15, as amended, is carried.

Shall I report the bill, as amended, to the House? Thank you. I will be reporting the bill.

With that, allow me to put on the record my thanks to all parties involved. It's been a very productive session, a very long one as well, and I think adding reinforcement to the merits of the first reading hearings. Maybe the art of the possible has been reinforced here, up to a point.

Ms Lankin: I would echo your comments of thanks to a number of individuals. In particular, I want to say that the ministry staff, in addition to leg counsel, who have been working under tight time frames, has had as well, both in the drafting of the bill and in dealing with subsequent amendments and in a series of meetings with opposition critics, very tight turnaround times. We're very appreciative of the work that's been done.

I couldn't let this opportunity go by without saying officially, on the record of Hansard, that as Gilbert leaves official employ of the Ministry of Health after many, many long years of dedicated public service under governments of all political stripes and ministers of health of all temperaments, and has sat before many legislative committees and provided good, honest counsel to ministers, parliamentary assistants and to committees who have asked for that, it's incumbent upon me to say thanks on behalf of all legislators who have worked with you and the public that you have served. I wish you well in your future career and hope that the Ministry of Health has deep pockets and can bring you back from time to time.

The Chair: Just to show how late in the day it was-I could blame the clerk, but I have to admit I didn't notice it either-he's obviously recycling paper, because obviously we dealt with Bill 68, not Bill 15. So allow me to ask the proper question.

Shall Bill 68, as amended, carry? Bill 68, as amended, is carried.

Shall I report Bill 68 to the House? Agreed. Thank you.

Mr Ouellette, who has Bill 15, will be very disappointed to know he still has to go through hearings next week. Again, thank you all.

Mr Clark: Just as a quick comment, I do sincerely want to thank the opposition parties. I think the bill has been vastly improved through the process, and I thank you for your participation.

The Chair: Thank you to the ministry staff and all who participated.

The committee stands recessed until 3:30 pm next Monday for the purpose of hearing Bill 15.

The committee adjourned at 2044.