COALITION OF UNREGULATED PRACTITIONERS
ONTARIO ASSOCIATION OF PROFESSIONAL SOCIAL WORKERS
THREE TRILLIUMS COMMUNITY PLACE
CONSUMERS' ASSOCIATION OF CANADA (ONTARIO)
ONTARIO SOCIETY OF PUBLIC HEALTH DENTISTS
CANDIDA RESEARCH AND INFORMATION FOUNDATION
CANADIAN UNION OF PUBLIC EMPLOYEES, ONTARIO DIVISION
ACTION COMMITTEE OF COUNSELLORS, ANALYSTS AND PSYCHOTHERAPISTS
CONTENTS
Thursday 15 August 1991
Regulated Health Professions Act, 1991, and companion legislation / Loi de 1991 sur les professions de la santé réglementées et les projets de loi qui l'accompagnent
Coalition of Unregulated Practitioners
Ontario Association of Professional Social Workers
Three Trilliums Community Place
Canadian Jewish Congress
Coalition of Churches
Consumers' Association of Canada (Ontario)
Assaulted Women's Helpline
Ontario Society of Public Health Dentists
Prison Fellowship of Canada
Candida Research and Information Foundation
Canadian Union of Public Employees, Ontario Division
Action Committee of Counsellors, Analysts and Psychotherapists
Patients' Rights Association
Adjournment
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
Chair: Caplan, Elinor (Oriole L)
Vice-Chair: Cordiano, Joseph (Lawrence L)
Beer, Charles (York North L)
Haeck, Christel (St. Catharines-Brock NDP)
Hope, Randy R. (Chatham-Kent NDP)
Malkowski, Gary (York East NDP)
Martin, Tony (Sault Ste Marie NDP)
McLeod, Lyn (Fort William L)
Owens, Stephen (Scarborough Centre NDP)
Silipo, Tony (Dovercourt NDP)
Wilson, Jim (Simcoe West PC)
Witmer, Elizabeth (Waterloo North PC)
Substitutions:
Huget, Bob (Sarnia NDP) for Mr Silipo
Jackson, Cameron (Burlington South PC) for Mrs Witmer
Ruprecht, Tony (Parkdale L) for Mrs McLeod
Waters, Daniel (Muskoka-Georgian Bay NDP) for Mr Malkowski
Clerk: Mellor, Lynn
Staff: Drummond, Alison, Research Officer, Legislative Research Office
The committee met at 1002 in committee room 2.
REGULATED HEALTH PROFESSIONS ACT, 1991, AND COMPANION LEGISLATION / LOI DE 1991 SUR LES PROFESSIONS DE LA SANTÉ RÉGLEMENTÉES ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Resuming consideration of Bill 43, the Regulated Health Professions Act, 1991, and its companion legislation, Bills 44-64.
Reprise de l'étude du projet de loi 43, Loi de 1991 sur les professions de la santé réglementées et les projets de loi, 44 à 64, qui l'accompagnent.
COALITION OF UNREGULATED PRACTITIONERS
The Chair: Good morning. Welcome to the standing committee on social development. The committee is now in session.
I would like to call first on the Coalition of Unregulated Practitioners. Please come forward and introduce yourself. The way the committee has been working, I have been asking everyone to leave a few minutes at the end of their presentation to allow for some questions if they wish. You have 20 minutes in total. I would ask that you begin your presentation now. Please have a seat so that Hansard can record everything you say.
Mr Evans: Our submission which is before you is very lengthy and I am not going to read it; it would take all day. Fortunately most of you have received and perhaps read most of the materials, but it is useful to have it all in one package.
Our main proposals as a coalition are four alternative solutions to the diagnosis-clause problem, and two supplementary recommendations. I am going to mention these first and then set them aside. These supplementary recommendations are designed to reduce the likelihood of prosecutions arising from turf or ideological considerations rather than from the need to protect the public.
One of them is to add to the duties of the advisory council a screening process. The other is an interpretative provision which would be in the legislation for the courts to apply when prosecutions are brought forth. I do not see any reason why both of these could not be introduced, but they are also alternatives.
I should mention, concerning the screening, that it would only be where someone tried to prosecute under the RHPA that the screening process would apply. A civil suit or something under the existing criminal law would not have to go through the RHPA.
I would stress that both of these are needed, whatever solution you arrive at concerning the diagnosis clause. These are mechanisms to restrain the misuse of a new set of laws, and there is still the problem of trying to get the best law drafted that we can. Also, these recommendations apply to all the prohibitions; they are not just relevant to the diagnosis clause.
In the report itself, there is a lengthy introduction, and then sections A, B, C and D. A explains what the coalition is; B, what is wrong with the first controlled act, and I will be going on now to talk about what is wrong with the first controlled act. In the coalition we have come to emphasize the need for clarity concerning what is wrong with it so that you on the committee would realize it is a serious problem; and also so that in your deliberations concerning what to do about it, whatever you come up with, we will need to deal with the problem.
In the College of Physicians and Surgeons of Ontario, the view, the last I heard, was that this diagnosis clause -- it is still called that often, though the word does not appear -- would be ineffective in ensuring successful prosecution. From the point of view of the coalition, it would put responsible unregulated practitioners in legal jeopardy. It is possible for these perspectives to be true, as we have seen concerning the harm clause, where there was -- there seems to be a consensus now -- kind of an impasse. I have hopes in regard to the diagnosis clause, however, that a solution may be findable.
The coalition concern is that they not be turned into a test case. It is not primarily a concern about successful prosecution; they might indeed eventually win if prosecuted. What sends shudders down the backs of the people in the coalition is the idea that the ambiguous meaning of "disorder," "dysfunction," and "cause of symptoms" can be left for the courts to decide, as people do not want to become a test case, especially when the wording is ambiguous.
The prosecution that is feared is not from the government. For some it is a fear of prosecution from one or other of the colleges, but it is mainly a disgruntled client who has the aggressive will and either personal wealth or the backing of some ideological group. For example, some pastoral counsellors could see themselves as vulnerable to a campaign by either a pro-life group or a pro-choice group in a test case, even if the person has acted very responsibly, simply doing his job. That is the problem. It is not that the coalition is advocating irresponsible activities on the part of the unregulated.
Our concern with regard to your committee is that because of the understandable urgency to pass the RHPA, and because there are bound to be some flaws in any alternative proposal, you may feel moved to pass it either unchanged or with only a kind of tinkered revision. In section C, the coalition rejects a number of tinkering solutions, including some that we presented ourselves in the past; we were not thinking as clearly as we might.
In particular, I draw your attention to one of these solutions. According to this, you retain the first controlled act as is, then you define "assessment," and then you explicitly permit it, put it in the public domain for both the unregulated and the regulated.
The problem with this approach, as I have now come to see, is how do you define "assessment"? You need to include in the definition of "assessment" what responsible regulated and unregulated workers do, which is, from time to time, to identify some disorders or some dysfunctions as the cause of symptoms. But if you put that in the definition of "assessment," then where is your contrast with the wording in the first controlled act?
If you use a vague expression like "evaluation of a physical or mental health condition" -- there is something like that in the Health Professions Legislation Review -- then that restricts unduly what many unregulated and regulated people do. It is pretty close to describing symptoms. Of course, many go far beyond that, and rightly so.
In section D we have four proposals, all of which involve deleting the first controlled act and then taking up a different approach. The first proposal is to prohibit misrepresentation of title and to rely on this and public education concerning title. The second, a relatively new proposal from the coalition, is to restrict potentially dangerous communications by reference to competence, a competency in communication approach. The third and fourth approaches involve restricting the unregulated by referring to the existing law of prohibiting the practice of medicine without a licence.
This third proposal has been very attractive to most mental health workers because they have not felt any threat from the existing legislation prohibiting the practice of medicine without a licence; this in contrast with some of the natural healers, who have felt not just prosecuted but persecuted under the existing legislation. This approach, by bringing in a reference to the prohibition of practising medicine without a licence, even if only in relation to the unregulated, I have been told seems to be contrary to the general spirit of the legislation, which was to abolish that prohibition and replace it by the set of controlled acts.
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The coalition as such does not endorse any one of these exclusively. All of these -- I want to emphasize this -- are regarded as better than the first controlled act as it stands now. That is why we are bringing them before you. We do not endorse only one, because there are differences within the coalition, and also because it is a public policy judgement, up to you as MPPs representing the public. I am not saying that just out of a polite deference; I really believe this. I think there are profound public policy issues at stake in regard to the choice you eventually make.
Proposal 1, prohibiting non-members of a college from saying that they are members: I am not clear whether the drafting is clear enough concerning this. I know some of the regulated are concerned whether it is sufficiently clear. That is an issue that no doubt needs to be looked into. Also, some professions may both need and deserve an exclusive clear title. For others it is a controversial issue, I gather. In the case of the psychologists -- this is only my personal view -- it seems to me they have a case for at least not having their clarity of title reduced by the current legislation.
Who proposes this overall approach? There are some MPPs I have talked to, some responsible regulated professions individuals and some responsible unregulated. Among the unregulated you will be meeting Ron Dugas, who I think is the clearest spokesman for the natural healers. He will be presenting something in Ottawa. The last I heard, this is what they were proposing.
What is the reasoning behind this? It is in a broad sense philosophical that there are limits on the extent to which the state should use the law to protect the public from making foolish mistakes in regard to advice concerning health, and a view that the consequences of introducing a law to try and do this are worse than the consequences of not having a law. That is a public policy decision.
I want to emphasize that the clarity concerning the ban on misrepresenting title is not an alternative to the other proposals from the coalition. They all need this too. Proposal 1 is to rely solely on this in public education and nothing else. All the other proposals assume that is not enough and they add something.
I am going to spend most of my time on proposal 2, because it is new, not because I can claim it has wide backing in the coalition. There has not been time for many to hear about it. On the whole, I have had positive responses, but also I think there is a possibility this may be the approach that can gain consensus. For one reason -- this is a relevant consideration, although I think it is not the only consideration -- it is closer to the Alan Schwartz HPLR approach, that is, you identify a potentially dangerous act, you describe it without reference to the practice of medicine, but here there is a difference. You cannot list this, as I see it, among the controlled acts because it is not like a piece of surgery, where you can say only a person who has such-and-such authorization should be able to enter in the ear beyond a certain point.
The potentially dangerous communications vary in relation to the varying competence of people and the varying subject matter. That is why I do not see how it can go in the controlled acts list. Nevertheless, in a distinct clause, it would be in the spirit of the Schwartz approach to identify something that is potentially dangerous, describe it without reference to the practice of medicine and then prohibit it.
I invite you now to look to page 3. Some of you are already. I will just look this over with you, the draft wording that begins:
"No person who is obviously not competent to make a particular diagnosis or assessment of a human health condition shall communicate the particular diagnosis or assessment to an individual or his or her personal representative in circumstances in which it is reasonably foreseeable that the person so diagnosed or assessed will risk significant harm by relying solely on the diagnosis or assessment."
Then there are two subclauses, both of which I think are necessary, something like this:
"Where a person is a member of a college, the inclusion of such a diagnosis or assessment within the scope of practice for that college is evidence of competence.
"Where a person is not a member of a college, training or experience" -- that is important -- "relevant to making such a diagnosis or assessment can be evidence of competence."
The effect on unregulated practitioners would be to make them be cautious about communicating a diagnosis or assessment in very circumscribed circumstances. One doubts whether the matter is within one's competence to judge whether if the client relies solely on what one says it could result in significant harm. So it is not that every time you open your mouth you are going to be worrying about being dragged into court. It is circumscribed.
It would be difficult for a court to prove obvious incompetence, except where a practitioner lacks the special technical-scientific training which is obviously needed in some cases -- obviously to any rational person, a judge or a juror. Telling someone he is depressed requires no such training. It seems unlikely that the clause would impose a burden of undue caution on responsible unregulated workers.
Concerns about one's competence and about risk of significant harm would only arise when one might make an authoritative communication. This does not cover treatment. Some of you would see this as a disadvantage. But that would get us right into the issues around the harm clause: that everything you did or said, you would have to be weighing whether you could be hauled into court. No, this is very narrow, very specified. Here, the clause would encourage unregulated workers in some cases to recommend that the client consult someone more competent in the area. That would be a good defence, in other words, if you are in doubt. You would say, "You had better see somebody else; this is what I think it is." This could often be a medical doctor, and in my own view it often would. That is where someone would obviously be sent. But it could be someone in one of the other professions -- say an audiologist; it is a preliminary meeting about hearing -- or it might be another unregulated practitioner, depending on what kind of problem the client has.
So the idea that there are different kinds of expertise relative to the kind of communication is crucial here. The clause would provide a deterrent to charlatans who have not the foggiest notion concerning the health condition which they are claiming to identify definitively. The clause would put into law, I think, what any responsible unregulated practitioner would do in any case.
A few comments on this. You will see them later on elaborated. The word "obviously" is important, although I realize that in law they do not like adverbs like this. "Clearly" or "grossly" incompetent -- maybe we cannot do it that way. It is important for two reasons: so that the courts do not get into subtle issues of determining competence. That is not the place of the courts. Also, to put the onus on the court, where a person has to rely on experience, it is hard to prove that you have the experience. It is not so hard to prove that you have taken such-and-such a technical-scientific training. So the reference to experience is crucial.
In the field of mental health, psychotherapists often think that the main way to become a psychotherapist -- not the only part -- is to undergo psychotherapy. It is a matter of experience. Then counsellors at the stress centres, who often have a better track record than the professionals there, I am told, simply have experience. It is not primarily training at all.
We put in both "diagnosis" and "assessment" so that the court does not get bogged down in trying to decide whether this is a diagnosis. Put in both words; it covers the field.
Finally, I would just like to comment that the regulated -- and this is not in the report -- could perhaps add something like the clause in relation to the unregulated so that individuals -- say, an individual nurse, just to take one example -- who have had special training beyond the scope of practice as listed could give an assessment, or even perhaps call it a diagnosis, a nursing diagnosis, beyond the scope if they have had specific training.
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I have heard that both nurses and social workers are in the business of diagnosing in the psychiatric realm. There are just not enough psychiatrists to handle all the admissions now. This may be shocking, but this would legalize what is actually going on -- shocking in that it apparently would probably violate the law, but this would be an incentive for people to take special technical-scientific training, whether they are regulated or unregulated.
I have only left one minute -- a couple a minutes, I guess; we started late.
The Chair: Thank you very much for your presentation. We have one minute.
Mr Owens: The question around the issue of competency -- I am just wondering why the onus should not be on the professional to demonstrate competence. The language around the person who was obviously not competent I find problematic. Even the Occupational Health and Safety Act has gone to great pains to identify what is competent. Do you have a comment on that?
Mr Evans: From the point of view of the practitioner it is important that whenever they are saying something in the course of treatment they are not having to worry about whether this is on the border, and this is very important, I think. Also, the point to the law, as I see it, is not to be able to nab everybody who has gone a little bit beyond his competence in saying something, but to try to nab the charlatans, the sharks, the extreme cases. That is the reason, as I see it, for that kind of emphasis.
It is possible that the other parts of this proposal, relying solely on what was said and the risk of significant harm, would protect the practitioners sufficiently. I grant you your point that in other areas it is just competency; it is not obviously competent.
The Chair: Thank you very much for your presentation. The committee appreciates you appearing before us. We have received much correspondence from you and would encourage you, as the course of these hearings continue, if there is information that you think would be helpful to the committee, to please continue to communicate with us in writing.
Mr Evans: Thank you.
The Chair: Thank you very much.
ONTARIO ASSOCIATION OF PROFESSIONAL SOCIAL WORKERS
The Chair: I would like to call now on the Ontario Association of Professional Social Workers. Please come forward. You have 20 minutes for your presentation. We would ask that you begin by introducing yourselves to the committee, and we would hope that at the end of your presentation you would leave a few minutes for questions from committee members. Please begin your presentation now, and welcome to the standing committee.
Mr Levine: Thank you very much for this opportunity. My name is Leonard Levine, and what I plan to do is provide a few introductory remarks and then call upon two of my colleagues to supplement, through their personal experiences, some of the issues we are concerned with.
I should mention at the outset, if people want to know more about us, on page 11 of our brief there is more amplified information about each of us.
What we hope to do is to cover our presentation in some 10 to 11 minutes, and then hopefully there will be some questions we can then respond to, if we are able to.
I should mention at the outset that we are here in support of the legislation you are engaged upon, and we recognize the difficulties and challenges that are before this committee. Many briefs will be presented to you in the course of these next few weeks. Having said that, however, we are also here to add to your concerns, because we have some major reservations about some of the things that are still remaining in the legislation.
First of all, we do applaud the removal of the so-called harm clause and urge you to maintain its omission from the final document, because that did cause us, as many other people, a great deal of concern, so we applaud your latest revision on that basis, but again, we stress that we really feel it is very important to ensure that is permanently removed.
Our major concern remains -- at least one of them -- around the area of the diagnosis clause, which is referred to in paragraph 26(2)1. There, too, like our previous colleagues, we feel that the difficulty of eliciting what diagnosis is in a health setting is extremely complicated and would interfere with the rightful jurisdiction of social workers, both within and outside of health settings.
We also cannot accept the distinction that has been made between diagnosis and assessment, and we would certainly welcome if that could be clarified, because we found we were not able to distinguish that, although we have been assured that assessment is okay where diagnosis is not. We are not concerned about that because it provides us with the hazards that are known.
As a recognized profession that has been in existence since 1964, as a recognized group that has extensive training programs within this province, we really feel that we have a scope and a legitimacy of practice that needs to be maintained rather than put in some jeopardy, as we submit this legislation may provide.
Certainly, having been involved in education in the health field for some 25 years, I can attest to some of dilemmas that we know are before you. A previous colleague has mentioned the situation in mental health. We can extend that to areas like rehabilitation, primary care, addictions, gerontology, where the definition of "health" can be so broad as to embrace any practitioner as well as a parent, or can be so narrow that it does not reflect the reality, and we understand this is the thin line that is being trod in terms of this legislation.
In the diagnosis clause, where areas like disorder and dysfunction are mentioned, we feel these are not necessarily restricted to health professions, but we as a profession have long been involved with the psychosocial diagnosis, assessment and indeed treatment of people who present to us with problems.
My two colleagues will be dealing with the situation of social workers in the health setting -- that would be Mr Paul Soren -- and Ms Miriam Mayhew will be dealing with social work outside the immediate health setting, but areas the legislation cause some problems with.
Again, we would like to applaud the recommendation of having advisory councils and, as a profession, we certainly support the involvement of consumers extensively and certainly would offer every collaboration we could provide in that pursuit, as indeed in any further explorations that this legislation may encounter.
Without further ado, I call on Mr Soren, who will talk about work within a health setting and the dilemma this legislation is suggesting.
Mr Soren: My point really is that the practice of social work in a hospital setting, in an acute care hospital setting in particular, is going to be constrained by the diagnosis clause. Having said that, I would like to share a little bit with you about the practice of social work in hospital settings.
The role of the hospital social worker is to promote adjustment by the patient and family to his illness. We attempt to consider effective ways of responding to the social factors and problems we see as they contribute to the health needs of the patient or consumer. "Consumer" I use in the sense that the consumer has choice. From time to time my language will include the word "client." "Client" may be a situation where a person is seeing a social worker not necessarily because he wants to.
Social workers focus on assessing post-hospital care needs and having a discharge plan ready to implement the moment a patient no longer requires acute inpatient care. Social workers' direct patient care responsibilities include discharge planning, individual, group and family therapy and co-ordination of care. In most hospitals social workers have educational qualifications of a BSW degree, most frequently an MSW degree and, in some cases, training at the doctoral level. Membership in the Ontario Association of Professional Social Workers and the Ontario College of Certified Social Workers, though not required, is encouraged.
Social work is an essential service in light of the purpose and goals of the acute care hospital. Our values we bring, our contribution to conceptualizing issues, our contribution in relating the hospital to the community are important.
Dr J. A. Brown, a social worker who directs the department of social work at Chedoke-McMaster Hospitals in Hamilton, has annotated in A Justification of Social Work in Health Care Settings that in acute hospital populations 40% to 50% of patients have psychosocial problems, and the prevalence is thought to be greater among chronic and rehabilitation patient groups. Literature is available to indicate that poor adjustment to illness has been associated with life stress, social isolation, unfavourable self-concepts, poor social relationships and negative attitudes.
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Social workers in hospital settings frequently communicate and interpret information about diagnosis to consumers and their families. On page 2 of your brief is a very good illustration which I will read with you, if you would like, about a scenario that involves a person who has been diagnosed by a physician as having a life-threatening illness such as cancer. This person may receive professional help from a social worker who is part of the health team or be referred to an independent social work practitioner. The social worker would discuss the implications of the diagnosis, assess the emotional response, assist the patient and the family in exploring realistic options for dealing with the effects of the illness and provide therapeutic counselling to help the patient maintain an appropriate degree of self-reliance through the period of adjustment. The social work assessment could be used by other members of the health team to assist them in the further treatment of the patient, including advising team members of cultural, economic, social and psychological factors which need to be considered in providing treatment.
A different scenario could involve working with a person who has been diagnosed as having a mental illness, such as schizophrenia. The person may receive professional help from a social worker who completes a psychosocial diagnosis and/or comes to conclusions about the impact of the illness. This assessment of a person's dysfunction is particularly important, because the literature highlights the importance of examining social relationships and events such as post-discharge environment, focused social skills and housing status as predictors of rehospitalization. The information is thus useful in formulating a plan for the provision of treatment services. In effect, communicating a diagnostic formulation or conclusion constitutes an essential component of the social worker's intervention.
In light of the high prevalence of psychosocial disorder among hospitalized populations, the strong relationship between this psychosocial disorder and the patient's attitude, or poor social support, including family dysfunction, and finally, the relationship between poor adjustment to illness and the cost of using health services, there is a growing need to continue providing targeted social work services to those high-risk and costly populations who use all health services.
The professional social worker in the acute care hospital is concerned with the social, physical and psychological wellbeing of the client. This includes concern for the client's family, care givers, consumer survivors, staff and community.
Issues in relation to the meaning and interpretation of key operational terms, such as "communicating a conclusion," "disease," "disorder," dysfunction," as appear in the diagnosis clause, paragraph 26(2)1 in Bill 43, are of major concern to social workers in hospital settings. It is important that the legitimate work for which professional social workers are trained, for example, psychosocial assessment, communicating and interpreting information, is not necessarily constraining and restrictive.
I thank you for your attention; I will pass on to Miriam Mayhew.
Mr Levine: Ms Mayhew, along with dealing with some general concerns, will also be drawing attention to another clause that causes concern, particularly with people in other fields.
Ms Mayhew: The Ontario Association of Family Service Agencies is a provincial umbrella association for 47 family service agencies around the province. We are glad of this opportunity to meet with you and to support the work of the Ontario Association of Professional Social Workers in drawing your attention to some of the concerns that we have about Bill 43. It is an opportunity for us to demonstrate to you that the meaning of the term "health" extends actually far beyond those settings which are clearly and obviously health settings or medical settings.
Family service agencies offer a very wide variety of services to their communities. These services include counselling to individuals, couples, groups and families where there are emotional and familial problems. Many clients served by the agencies are dealing with the psychological and emotional sequela of childhood trauma, including physical abuse and incest. Many more have difficulties in interpersonal functioning which lead to problems in their ability to maintain relationships at home and at work. Still others are trapped in a deepening cycle of poverty and hopelessness and require intervention which will allow them to cope and hopefully to make what changes are realistic. Many clients are struggling with problems related to substance abuse, and there is a sizeable group of clients who are chronically psychiatrically disabled and who are unable to receive treatment in the health system beyond that of the prescription of medication. A large and growing proportion of our clients, those served by family service agencies, are involved in families where there is violence. Family service agencies provide service to the victims, perpetrators and witnesses of this violence.
The staff in family service agencies are almost without exception members of professions which are not listed in schedule 1. They are mainly social workers. These staff are trained to perform psychosocial assessments, to share with their clients the conclusions of these assessments and to arrive at an understanding of the goals which both client and consumer will seek to meet. This is a professional process which demands that its practitioners be qualified and accountable.
Family service agencies are solidly in support of Bill 43's attempts to provide for the full accountability of professionals. They find it incomprehensible that the legislation does not include social workers as a regulated profession, and because of the profession's exclusion from the proposed legislation, perceive a serious threat to the legitimate practice of their profession.
The Ontario Association of Family Service Agencies and the Ontario Association of Professional Social Workers are both on record as supporting the drive to secure a social work act in Ontario through the Ministry of Community and Social Services, and we note that this is the course that the drafters of this piece of legislation advised us to follow.
Bill 43 does not restrict its definition of "diagnosis" to medical diagnosis. Accordingly, family service agencies fear that the psychosocial assessments performed by its staff may be considered to be controlled acts. They have heard the verbal reassurances that this is not the intention of the legislators, but we are not reassured.
Subsections 38(1) and (2) of Bill 43 outline that employers and boards of directors are at considerable risk of prosecution should staff perform the controlled act outlined in subsection 26(1). Since we have no substantive reason to believe that social workers are not placed in jeopardy by this section, we must conclude that the practice of social work, the employment of social workers and the governance of social work agencies are activities directly threatened by Bill 43 as it is presently written.
The Chair: Thank you for your presentation. I have some questioners, if you have finished your presentation.
Mr Jackson: Perhaps I will start with the very last statement that Ms Mayhew made with respect to their interpretation of the implications of, I think she referenced section 38. Perhaps we could ask legal counsel if they concur with that opinion that we have placed social workers and social work professional activities in that context through this legislation.
Mr Levine: Our legal advice --
Mr Jackson: I have asked legal counsel, and then I might come back to you, if the chairman will permit me, but I would like you to hear their response first.
The Chair: I am going to direct that question to the parliamentary assistant.
Mr Wessenger: I will refer that to counsel.
Ms Bohnen: The government's view is that social work diagnosis, or as we have heard this morning, psychosocial assessment, would not be affected, would not be restricted by this legislation, and that therefore employers of social workers who perform psychosocial assessments or diagnoses would not incur any potential liability.
Mr Jackson: Can you direct us to a specific statement in the legislation, a specific clause, which is a safe harmless clause for them in the context of what you just said?
Ms Bohnen: No. There is no clause saving them harmless.
Mr Jackson: Then what clause states what you just said?
Ms Bohnen: The government's view is that the controlled act in paragraph 26(2)1 does not capture social work diagnosis.
Mr Jackson: Can we say that specifically, that they are exempt and outside? Is that how we are doing it?
Ms Bohnen: The government's interpretation of the clause is just what I have said to you.
The Chair: Mr Jackson, there are other questioners.
Mr Jackson: If you are cutting me off, perhaps we could let the deputants respond to the information we have just heard.
The Chair: All right. Would you like to make a comment?
Mr Levine: Just a brief statement. Although we applaud the intention, our legal advice says it still would have what is called a chilling effect on social work practice because it is not exempted.
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Mr Jackson: Could we get a copy of that as a point of information?
Mr Levine: That is included in our brief.
Mr Ruprecht: Just briefly, looking at your recommendations, other than your recommendation to persuade the Legislature, as you have done previously, to create a social work act, are you essentially in agreement with the coalition that the diagnosis clause, as you have described it here, is essentially similar to what they have presented to this committee?
Mr Levine: Yes, indeed. We certainly do support their concerns as well in reference to the diagnosis clause.
Mr Beer: With respect to the question around regulation -- I just want to be clear for the record -- your preference would be to have a social work act and to be regulated under such an act, or would your preference be to come within the scope of this act?
Mr Levine: As a profession, we have followed the advice originally of the Health Professions Legislation Review that we pursue our social work act within the Ministry of Community and Social Services, because not all members are related to health settings, and that is the reason we are pursuing this at this time.
Ms Mayhew: I think we need to make the point fairly clear that, while we very much want a social work act in Ontario, the achievement of such an act will not solve some of the problems that we have identified in this bill.
Mr Beer: That was my second question, to determine that even with that you would still see difficulties.
Ms Mayhew: Yes.
Mr Jackson: And we are the last province in Canada not to have one.
Mr Levine: Yes, exactly.
The Chair: Thank you very much for your presentation. We appreciate you coming before us today.
THREE TRILLIUMS COMMUNITY PLACE
The Chair: I call next Three Trilliums Community Place. I would like to welcome you before the standing committee on social development. You have 20 minutes for your presentation. We would ask that you introduce yourselves to the committee and leave a few minutes for questions from members following your presentation, if you would. Please begin now.
Ms Isabella: Last week, Victor Willi of the Centre for Independent Living in Toronto spoke to this committee about independent living for persons with physical disabilities. He referred to the struggle by people with disabilities to have the right to live in the community as "the last civil rights movement." Mr Willi also explained why self-directed attendant services are such an important element in this struggle for independence.
I am speaking to you today as a representative of one of the many organizations which provide attendant services to adults with physical disabilities. Three Trilliums Community Place is a non-profit organization wholly funded by the Ministry of Health and the Ministry of Community and Social Services. With the assistance of our attendant staff, Three Trilliums' clients are able to live in their own apartments, go to school, work, pay taxes and vote; in short, live independently. I am both the chairperson of Three Trilliums' board of directors and a consumer of Three Trilliums' services.
In the course of the last year, our board has written to successive ministers of Health to express our concern with some of the recommendations of the Health Professions Legislation Review. The recommendations which caused us concern have now become part of Bill 43.
Paragraph 26(2)6 of Bill 43 would include as controlled acts some of the bowel, bladder and other personal services which we consider to be non-medical. We have been providing these services to our clients on a daily basis since our project opened in 1980. This section would require that some routine functions in the daily lives of people with disabilities be brought under the direction of a health professional.
The ability of our clients to determine the extent and timing of the services they require and to direct our staff in the provision of that care would be subordinated to the control of the governing council of a health profession.
On July 16, 1990, we were advised in a letter from the then minister responsible for disabled persons that "an appropriate exemption will be created -- through regulation -- removing the activities of personal care attendants from the controlled acts."
In the face of fines of up to $25,000 for performing the controlled acts, Three Trilliums is not satisfied that its concerns will be met by an exemption created through regulation. To our knowledge, the promised regulation has not yet been drafted. Consultation on the terms of such an exemption, we are told, must wait until after the passage of this legislation. Will the exemption be comprehensive? Will it be subject to veto by the health professions? Will it contain additional, as yet unknown, barriers to be crossed?
Three Trilliums supports the view expressed to you last week by Mr Willi. The drafters of this legislation want to regulate the health professions. We have no argument with that, but do not include attendant services in your legislation. Attendant services are not health services requiring regulation. Attendant services must remain subject to the control of those people who rely on them to maintain their independence. People with physical disabilities should not once again have to argue for special measures to protect their right to decide what is best for themselves. They should have the dignity of risk and they should have the choice to live independently.
We would like therefore to repeat our recommendation that Bill 43 be amended before passage to include in section 28 an exception to allow consumers to retain the option of directing their own support services. Such an amendment should be drafted to ensure that the exception applies to the consumer of attendant services and not to the service provider or attendant; to those consumers who require services of a routine and stabilized nature; to those consumers who are capable of directing their own services; and, to all those activities of daily living which an individual would do for themselves if it were not for a physical disability.
Mr Beer: When Victor Willi was here last week he noted there was to be a meeting, I believe, between representatives from the different disabled organizations and the OMA. Part of the discussion was to be around how this might be dealt with. I wonder whether you know or perhaps participated in that meeting. Was your proposal on page 4, where you make the recommendation that we change section 28, which would then allow the attendant care services to be exempted, the proposal that was put before the OMA, or is there anything that you might be able to report back to us on how those discussions are going?
Ms Isabella: There are various organizations in the disabled community that are working on that wording right now, so it is my understanding that there is going to be work done. We are not going to draft the legislation, but give input into the wording that might be acceptable.
Mr Beer: As we said to Victor when he was here, the committee would be very interested in being made aware of the results of the discussions, because I think we are all struggling with a number of issues. I think that this would be shared by all members of the committee; we do not want to limit the development of attendant care services. Indeed, the thrust in many other programs and legislation is to provide for greater independence for those with disabilities. But we are mindful that we have to get the wording right. We would like to keep in close touch with you on how those discussions go with the OMA.
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Mr Jones: If I may add, to our knowledge they have come up with a wording that addresses these areas and that will be submitted to this committee fairly soon.
Mr Owens: My question is to the parliamentary assistant. It is around the issue of consultation that is taking place between the attendant care groups and the ministry. Can you perhaps tell us where you are in terms of wording and what level of consultation is going on?
Mr Wessenger: I probably will refer that for more specific information, but certainly the whole matter is under consideration. We have been trying to work out a satisfactory resolution of the matter. The exact wording has not yet been determined.
The Chair: Mr Owens, as you recall there was some discussion of this and ministry staff placed on the record quite a comprehensive explanation. As well, I think all three caucuses signified their support for this accommodation to be made, as it was not an intention, in any way by anyone, to inhibit the attendant care program. I have asked research to make that Hansard available. Hopefully before noon today, a copy will be available for you. If you require any additional information from the ministry, they can add to that, but I think it was quite a comprehensive response.
Mr Jackson: Madam Chair, might I add to your generous offer of additional information that copies be sent to Ms Isabella and Mr Jones so they can share that with their board? They did take the time to present their case and I certainly would like them to have a copy as well.
The Chair: Of the Hansard?
Mr Jackson: Of the Hansard, specifically referencing the points they have raised in their brief.
My question would have been to legal counsel over the difference between regulatory response to the concerns expressed versus inclusion in the legislation a new section 28e. Do we have a sense from the government if there is a willingness to put that in the bill, as Ms Isabella has indicated, or is it to put it in the regulations? Has there been a change in thinking in this area? I would like the government to clarify, but certainly we have no difficulty in the Conservative Party for having it included in the legislation in the section I have just suggested.
The Chair: On you first point regarding the Hansard, this was discussed at the subcommittee and agreed that the Hansard would be made available to deputants that addressed this issue before the committee. I was pointing out to the committee that we expect to have that Hansard available today. The witnesses that are appearing before the committee will be given a copy of that Hansard. Mr Wessenger, on the second point?
Mr Wessenger: I think we have to go through the hearings process. I assume that, in the normal course of any committee, there will be clauses brought forward for amendments to deal with specific problems before the committee can make that decision of how it is dealt with. I think it is premature until we have completed the full hearings.
The Chair: Thank you very much for your representations and presentation. That Hansard should be here within the next 10 or 15 minutes. We would be happy to give you a copy of that.
CANADIAN JEWISH CONGRESS
The Chair: I would like to call next the Canadian Jewish Congress. I would ask that you come forward and take your place before the committee. We would ask that you introduce yourselves first. You have 20 minutes for your presentation and we would ask also that you leave some time so that members of the committee can ask you questions.
Mr Lenkinski: My name is Louis Lenkinski. I am the chairman of the subcommittee dealing with this matter. With me is Rabbi Sheldon Steinberg, who is the director of chaplaincy; Teri Kay, who is the director of family and community services of the Jewish Family and Child Service; Mr Elliott Karman, who is a clinical social worker; Dr Edmond Lipsitz, who is the director of education and all its services for the Canadian Jewish Congress. I think the best thing would be if I read the submission, and then answer any questions.
We are the Canadian Jewish Congress representing the network of Jewish communal services in Ontario. In our network we provide social work counselling, chaplaincy services to inmates in institutions, vocational and career guidance counselling.
We and our constituent organization wish to express our appreciation to the government of Ontario for introducing the Regulated Health Professions Act, 1991, and its companion Bills 43-64 for passage by the Legislative Assembly of Ontario, in an attempt to regulate the health professions and to weed out undesirable individuals who take advantage of the most vulnerable members of society.
At the same time, we wish to call the committee's attention to paragraph 26(2)1 of the proposed act, ie, the diagnosis clause, which describes a controlled act as follows: "Communicating to the individual or his or her personal representative a conclusion identifying a disease, disorder or dysfunction as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the conclusion."
In our opinion, the inclusion of this paragraph in the proposed new act would create hardships and conditions under which members of legitimate and necessary health professions would find it difficult, if not impossible, to operate. We strongly believe that it would be inappropriate for paragraph 26(2)1 to remain in the Regulated Health Professions Act, 1991, in its current form, and that its inclusion would expose professional social workers, the clergy, and guidance counsellors to unnecessary risk in their professional practices.
The legislation, as it is presently written, will have a chilling effect in that it may well mean that people in the above stated professions will be unable to give quality counselling or assistance to those who are in need. This would appear to run contrary to the intent of the legislation, and the basic principles of care for those in need of treatment or advice. In light of the above, therefore, we strongly urge the government to reconsider the inclusion of paragraph 26(2)1 in its present form in the the Regulated Health Professions Act, 1991. Respectfully submitted by the Canadian Jewish Congress.
Mr Beer: Again, as with a number of organizations, you have put the finger on 26(2)1. I think all members of the committee are going to be traumatized with those numbers and that designation. The problem, as I see it, and I say this partly as a former minister in the former government, and having been in Community and Social Services, and as a non-lawyer, is that we are trying to balance two things: protection of the public and yet allowing professionals to carry out their legitimate responsibilities.
The former government's view and the present government's view is that this paragraph does not cover the work of social workers, that they do not fall under the purview of this. So we are then left with trying to sort out, as individual members of the committee, how we change this so that it will both protect the interests that you and others speak to, as well as ensuring that there are not a lot of folks running around giving out diagnoses who should not be doing that.
In the course of your work, as you have looked at this, have you either tried to come up with some wording, or are you aware of what the Coalition of Unregulated Practitioners has come forward with, and also the Ontario Association of Professional Social Workers? Are there some options here that you would like the committee to consider as a way of replacing this specific wording? Because that is our goal here.
Mr Lenkinski: Our position is a very simple one. We are pleading with you to put in a statutory exemption to exempt these groups of which we are speaking from that provision. Our experience with trying to interpret the intent of legislation before the courts is not the best.
I have enough experience in my work in my other capacity. I am a commissioner with the Ontario Human Rights Commission, and I dare to admit it in front of the legislative members. However, I want to tell you that the courts do not interpret your intent properly, because there is a very basic difference between social policy and the law. Do not stop us from providing one of the most vital services to our community, both in the way the clergy and social workers are providing that service, and also how we guide our youngsters in our school system.
Mr Beer: Your sense is that it would be through the route of exemption rather than trying to recast this clause or to draft some other article that would still be the subject of some kind of court interpretation?
Mr Lenkinski: Unless there is, of course, language that would not cast such a tight net to catch fish you really do not want to catch.
Mr J. Wilson: My question has been answered; the response was "statutory exemption," and I will certainly take that into consideration. A number of groups, of course, have suggested that to us. We would be pleased if in the future you could get around to some suggested wording on how that statutory exemption might be helpful.
Mr Lenkinski: Let me add to that. Quite a number of the employees are in the system of delivery of these services as well, and I am suggesting that it would be very presumptuous on the part of our organization to suggest legislative language to you. You have staff, you have lawyers, you have enough people who can come up with very good language to produce the results you want.
Mr J. Wilson: I appreciate that. It is just that if you are lying awake at night thinking about this and you come up with any language, we would be happy to hear about it, because this is a product of staff as it is written now.
Mr Jackson: This is a creature of the bureaucracy you are referring to.
Mr J. Wilson: And they are doing a good job, I might add.
Mr Jackson: Yes, absolutely.
The Chair: Thank you very much for your presentation. If, in the course of these hearings, there is anything further that you would like to communicate with the committee, please feel free at any time to submit briefs in writing or letters via the clerk of the committee. We would be happy to hear anything further that you wish to share with the committee.
Mr Ruprecht: I was somewhat disappointed that Mr Lipsitz, whom I consider one of the wisest men in council, did not say anything.
Mr Lipsitz: It is not wise. My chairman is doing the job.
Mr Ruprecht: He is doing a good job, right?
The Chair: The committee will recess and reconvene at 11:20.
The committee recessed at 1104.
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COALITION OF CHURCHES
The Chair: The standing committee is now in session. I would like to call the next presenters, the coalition of major Christian denominations. You have 20 minutes for your presentation. I would ask that you introduce yourselves to the committee and if you will, leave a few minutes at the end for questions from committee members.
Father Cuyler: Madam Chairman, on behalf of the Coalition of Churches, and you can see them listed there, we are here to reaffirm our concern re the wording and implications inherent in paragraph 26(2)1 of the proposed Regulated Health Professions Act, 1991, known as Bill 43.
The present wording of this section does not differentiate between an assessment made by a regulated or an unregulated health care practitioner. This leaves the door open for disgruntled people, not the government, to prosecute any unregulated worker, because they are not excluded and/or identified with this diagnosis clause. Across the province, and within our networks, clergy, pastoral care workers, religious orders, all those listed, this has caused tremendous concern about the effects of this legislation on their work.
None of the unregulated groups or individuals, paid or unpaid, wants to become a test case either. All those listed are called upon in various ways to give assessments and diagnoses by those who look to them for assistance and direction. All of them do far more than talk to people. We have been in communication with the religious community across the province and they have been getting letters back saying: "Oh, it's not meant to affect the clergy. They can continue to talk to their people." Clergy and lay volunteers do a lot more than just talk. In fact, they do the major amount of counselling in our community.
Therefore, if passed, this section would place in legal jeopardy all unregulated mental health workers, regardless of their qualifications and/or training. Whenever they are asked such questions as, "What's wrong with me?" if they respond, "You're tormented by guilt," or "You're very depressed," or "You're an alcoholic," or "Your family is dysfunctional in these ways," etc, then they have just identified a disorder or a dysfunction.
The present regulated health care workers cannot possibly address all the social and psychological needs of the people of this province. That is why there are hundreds of church and voluntary agencies providing a wide variety of services to people who are suffering from a multiplicity of disorders and dysfunctions that are prevalent in our society.
The financial implications of this bill are terrifying. None of the present work could continue without placing its workers in jeopardy unless it was approved by one of the regulated professions. The potential cost to the Ontario health care program would be astronomical and would bankrupt the system within a few years.
We are concerned also about its effect upon the court system, which is already overburdened. Through our present involvement, we are aware that there are thousands of unstable people in this province who are currently being serviced by our network. If this law is passed, it is clear that those persons who have the "let's sue" mentality will use it. This group of people is all too willing to use a new piece of legislation to get at those who have sought to help. There are also those who, because of their anger or their turf wars or their ideological disputes with the unregulated, can have a field day with this clause.
The Ministry of Health and its staff have continued to say that the diagnosis clause will not cause problems for the unregulated; that the regulated, be they religious or otherwise, may still continue to "talk to their clients." But far more than that is carried out by the unregulated services and their staffs across this province. The Coalition of Churches recognizes that the Health ministry, in drafting this legislation, did not intend it to affect clergy. We are not here just to protect clergy. We are very concerned about that whole network of community services which the religious community provides in a wide range, as well as those provided by a large group of secular agencies across this province. They are all put in jeopardy by this act.
If we are not be affected, then why were we not involved in discussions in the drafting of this legislation? It is a real concern to us and that is why our members are concerned. Why did the government not consult with the churches, the clergy, the workers, the chaplains in health care institutions, etc? None of our workers wishes to be involved as a test case, standing in a court of law and saying to the judge, "But, Your Honour, this legislation was not intended to affect me."
On page 2 we have put forward some possible solutions. They have been put together by a wide group of people. They are not the sole property of the religious community. We could restrict the unregulated and regulated in different ways. What is the real intention of this piece of legislation in regard to the unregulated? There is a real lack of clarity. One could retain the prohibition of practising medicine without a licence in relation to all the unregulated. You can modify that prohibition in relation to non-medical regulated professions by saying that it only applies if they perform a medically authorized controlled act for which they are not authorized; or delete the first controlled act, relying on the current prohibition of practising medicine without a licence in the case of the unregulated, and introduce a new clause for all the regulated, permitting them to communicate assessments within their scope of practice, as noted in the legislation.
You could restrict the medical diagnosis to doctors and that is another alternative. You could prohibit misrepresentation. Especially where one is communicating an assessment, one must not wrongfully claim to be a member of a regulated profession. Only a member could claim the title of whatever that regulated profession was, and if you are not one, and you are in the unregulated, then you have no right to use it.
Some regulated professions believe that this adequately protects the public. Others would try to find a wording which would also prohibit misrepresentation concerning one's competence to make and communicate the assessment which one has made.
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The other one, at the bottom of the page, is that the advisory council should screen prosecutions based on this piece of legislation. Both regulated and unregulated health care workers have reason to fear that, regardless of how various clauses, such as the diagnosis clause or its replacements, are worded, they might be prosecuted because of a turf battle or an ideological dispute.
The coalition recommends that the advisory council's duties should include the screening of all prosecutions under the RHPA except those initiated by a college in relation to its own members, setting aside those which do not pertain to the protection of the public. Since no past or present member of a college can be on the council, there is a reasonable hope that the council will be non-partisan concerning issues of turf or ideology.
Finally, would not the simplest solution of all -- we are not legal people; at least we try not to be too legal in our religious networks -- be to have a clause that states that the controlled acts concerning diagnosis apply only to those regulated? We do not feel it is appropriate for us to solve this problem or to write what should be there. The suggestions we place before you are endorsed by the Coalition of Churches but have been arrived at in conjunction with a much wider network of concerned people. It is our hope that the religious community will not be overlooked in the future when legislation affecting its work is being drafted.
May we take this opportunity to thank you, Madam Chairman, and your committee for allowing us time on your busy agenda. We hope the suggestions we have brought will be of assistance to you and that the very genuine concerns of the religious community across this province, its staff and all our volunteers who provide such a wide range of important services will be heard.
Mr Beer: Thank you very much for your presentation and for a number of your suggestions. We have had a number of submissions this morning on this specific area. I would like, if I might, to play the devil's advocate here. What I want to get a better understanding of is this: Certainly it was not, I believe, the intention of this government or the previous government or the committee members to ensure that clergy, social workers and various others cannot do a lot of the things they are doing. Indeed, those are worth while and important.
What I am trying to understand in the balance in looking at that clause is, if I were a social worker or a member of the clergy and I were sitting with somebody, counselling that individual and saying -- and let's use the examples here -- "Look, you're depressed," or "You're having a problem with drinking," whatever, how does that then become, in effect, a case? How do you become limited? As a lay person, I would not think, by any stretch of the imagination in terms of health services, that you are providing a diagnosis or even an assessment. I am wrestling with this. If there is indeed a problem here, how do we cope with that? Perhaps if we could have a better understanding of what it is that is feared will happen or how that will happen, that would help.
Father Lombardi: You are counselling and a married couple comes to you and one has a problem and is brought on by the initiation of the other partner: "My spouse has a real problem. We should talk. We have a marriage problem." You find out that the person is distraught, and that is shared by one, and the person does not believe that to happen. The argument is between the couple. Then whatever the suggestion of the clergy or the pastoral worker or the unregulated is becomes the issue for that couple. It can result in a lot of problems, one denying, "Well, that's what they said, and you do not want to listen to them," or whatever. I think there are some problems there, and it could result in some further actions, based on whatever is said to that couple, if one refuses to read the writing on the wall either in the marriage or some problem signs. That is a possibility.
Father Cuyler: Could I just respond to that too? It is the wording of the present legislation that when one does that, we have just given a diagnosis, we have diagnosed a dysfunction. That is a problem.
The other is that often, for example, you could have a couple -- and both of ours are here, so we could use this one. A girl becomes pregnant, for whatever reason. She could go to one church, because of one parent being of that faith, and could be counselled to have an abortion. The parent on the other side could say, "Absolutely not," and you could get into a major kerfuffle. You get into some of these areas. It is that whole "Let's sue" mentality that is in our world. That is the frightening thing, how people will use any piece of legislation in terms of getting at those whom they feel strongly about. I know Massey and I joked about this in the early stages of it, so I can use that illustration, but it goes way beyond that. It concerns us greatly how that would affect, over the longer period of time, that whole raft of unregulated work that is going on in terms of this problem.
Father Lombardi: Just from personal experience, there are certain areas in professional relationships as clergy people and pastoral workers that clients or people of our faith would readily share with us and not with their medical doctor or with anybody else. I can assure you that is always the case in prisons where I have worked, either with men on death row or other areas. It seems to me there is an area there both of confidentiality and also very personal things that they feel a confidence in. Therefore, in trying to help that person through real pastoral care and spiritual counselling, it requires some diagnosis, either from a moral/ethical perspective or church teaching and everything else. It is those kinds of things that this legislation would threaten.
I am quite certain that is not the government's intention, because if it were -- and I am saying it is not -- it would negate any of the church-related organizations that have worked closely with government, not to mention the government chaplaincy services of Ontario, where there is a partnership. The government has traditionally viewed the contribution of faith communities and their volunteers as performing a service that no other body can perform, because it is another level. It is that kind of level that is between the lines here. Although it is not the intention of the law -- it is not so much between the lines -- there are big gaps there. I think that is where the concern is. The vagueness would result, I think, in some very negative results on how faith communities and their workers can get at what professionals cannot get at in many ways.
Many times in our relationship with people like that, and working in teams in hospitals and chaplaincy, where although it is not confidentiality that is breached, there is a view that is very helpful in the holistic kind of approach in determining what is the matter with this patient and how this ex-offender or offender can be helped to resolve the problems. These are the kinds of things we are concerned about.
Ms Haeck: The previous speaker was just making mention of something I wanted to raise. In speaking with a divinity candidate in my riding, this person put forward the view, and obviously one that many of us also share, that the chaplain working in a hospital setting really is part of a health care team, a feeling that may not always be supported by some in the medical community. But there was definitely this feeling that the whole person needs to be treated and really to be made to feel part of that team. Your basic view is that this is now being compromised by this particular piece of legislation. Would you feel -- and I really want a strong confirmation on this one, the yes-no position here -- that you would prefer to be clearly exempted, that this does not apply to the clergy, as some other groups have also put forward?
Father Cuyler: I do not think we want it just to apply to the clergy. That is a position we have tried to maintain, why we support the Ontario Association of Professional Social Workers, why we agree with the Coalition of Unregulated Practitioners, and we ourselves have expressed this major concern.
Ms Haeck: So you are really looking for a very clear exemption, of what is included and what is not included.
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Father Cuyler: We want clarity so that people operating within their sphere of competence and expertise and knowledge can function without a cloud over them, always having to be very careful in dealing with the people who look to them for assistance.
Ms Haeck: You raised another point which I would like to address. Obviously you are bringing it here to us today. In the whole consultative process, over the eight-year lifetime of this bill in its various forms, how have you communicated your position in the past?
Father Cuyler: It was not until the legislation was ready for presentation with the Liberal government. We had a meeting. Finally, we wrote a variety of letters and had a meeting with your Chairman. There were, I think, five of us at that meeting. We expressed our serious concerns about this proposed legislation, and since that time we have continued unabated in our opposition to the wording and the dangers inherent in the way it is presently worded.
The Chair: Mr Wilson, you have less than one minute.
Mr J. Wilson: I will ask a less-than-one-minute question, then.
I understand the intent of your suggestion that the advisory council should screen all prosecutions. My concern would be that we would be conferring a quasi-judicial power to that council that, to this point, is not intended. Can you just expand on what you mean by screening?
Father Cuyler: I think what was in our mind was that rather than every case ending up automatically on the court docket, and you are into the legal process with all the costs and this being criminal legislation, it would go through some process. Whether or not it is this committee, there needs to be some group that would look at proposed prosecution, use of the court system to get at somebody, so that those that were genuine could go on, but those that were purely mischievous would not.
The Chair: Thank you very much. We appreciate your presentation and we hope that as our hearings continue, if you feel that there is anything further you would like to add, you will feel free, as you have in the past, to communicate with the committee in writing.
Father Lombardi: Could I ask a question of the members of the committee? Where does this go from here, as far as you are concerned?
The Chair: The process of the committee hearings is that following the public hearings, probably after the Legislature resumes on September 23, the committee will sit in clause-by-clause discussion of all the pieces of legislation, during which time amendments can be proposed and discussed and then voted on in committee. The bills will then be -- the technical term is reported to the Legislature after they have been fully completed in discussion at the committee level. They will be reported back to the Legislature, where they will receive committee of the whole, potentially, or third reading discussion and debate, when it is ordered by the government House leader. That is the legislative process.
Father Lombardi: Will there be any opportunity for any of us, including ourselves, for another review of that, in terms of any wording? How is that going to work?
The Chair: You are welcome to communicate with the committee in writing at any time during the hearings process and, as well, as it continues through the legislative process, to let individual MPPs, the minister or any members know the positions that you hold about the actions or suggestions that have come forward, but this is the only opportunity for you to present during the public hearings. There are many who, given the time available, have been asked to submit briefs in writing. All briefs which are submitted to the committee will be appended and become part of the public record.
I appreciate the committee members giving me the opportunity to explain that to the deputants. I hope you agree with me that it is important that the process be clearly understood.
CONSUMERS' ASSOCIATION OF CANADA (ONTARIO)
The Chair: I am going to call now on the Consumers' Association of Canada, Ontario section. Please begin by introducing yourselves. All the members of the committee have received a copy of your brief. You have 20 minutes for your presentation and we ask that you leave some time, if you would, for questions from committee members. Thank you very much. Please begin now.
Mrs Rubino: My name is Rose Rubino. I am the health committee chair. With me is Lucienne Bushnell, vice-president of policy and issues, and Beatrix Robinow, the former health chairman and now a member of the health committee.
The Consumers' Association of Canada, an independent, non-profit, voluntary organization, represents and informs consumers and advocates action on their behalf to improve the quality of life. It is the largest organized consumer group in Canada. The Ontario branch of CAC has over 50,000 members. Consumer advocacy, consumer representation and consumer education have been the major activities of CAC and other local associations throughout its 44-year history.
Health and health care are priority issues with CAC. One of our primary concerns is consumer access to high-quality health care at an affordable cost. The Consumers' Association of Canada Policy Statement on Consumers and Health Care, October, 1989, is a detailed document explaining consumer rights and responsibilities concerning health matters.
Our association firmly believes that all consumers have certain basic rights. The International Organization of Consumer Unions' 1984 consumer rights were adopted by CAC (Ontario) in April 1991. They are the right to basic goods and services, the right to safety, the right to be protected, the right to have choices, the right to be heard, the right to redress, the right to be informed and the right to a healthy environment.
CAC is fully committed to the rights of consumers to be informed, respected and to participate in reaching decisions with respect to their health care. The health committee of CAC has been interested and involved in the Health Professions Legislation Review from the beginning and made an extensive submission in January 1985. In May 1989, CAC expressed its concern to the Minister of Health on the implications of the Schwartz report.
We are pleased that the act provides for a uniform regulatory structure across all health professions, a more open and accountable complaints and discipline system with a greater public involvement on college councils and in public hearings, and a clear description of all regulated health professions and the scope of practice of each.
CAC is very disappointed that Bill 43 omits sections 27.04 and 27.05 which were contained in the Health Professions Legislation Review, Striking A New Balance: A Blueprint for the Regulation of Ontario's Health Professions. These sections stated:
"27.04 (1) No person shall treat, offer to treat, or advise in respect of any human health condition in circumstances in which the treatment, offer of treatment or advice, or an omission therefrom, has resulted in harm or may result in a risk of harm.
"(2) Subsection (1) does not apply to a person who is a member of a regulated health profession listed in schedule A where the treatment, offer of treatment or advice is part of the practice of the profession of which the person is a member.
"(3) In subsection (1), `harm' includes (a) any or increased physical or mental disease, disorder, dysfunction, injury or pain and (b) death or earlier death.
"27.05 A person who contravenes section 27.04 is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than two years, or to both."
In response to the ministry's request for comments on sections 27.04 and 27.05 of the Health Professions Regulations Act, 1990, the Consumers' Association of Canada on October 4, 1990, forwarded our support for this section and also offered an alternative wording. However, this section has now been deleted from the act. It would appear that criticism of the original wording and concern as to the enforceability of this section was received by the ministry from various sources. Possibly concerns were also raised by unregulated practitioners, such as social workers and clergy, who felt it opened them up to potential prosecution in connection with their counselling activities.
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To CAC it appears that the baby has been thrown out with the bathwater. Section 27.04 was aimed at preventing harm resulting from treatment or advice provided by persons who were not members of regulated health professions or who, if they were, exceeded their scope of practice or licensed acts. Section 27.04 was a vital component of the licensed act scheme and the act's viability has been compromised by its omission.
CAC recommends that sections 27.04 and 27.05 be rewritten and reinserted into the act. This would then ensure that one of the objectives of the act is met, namely, that "the public must be protected from unqualified, incompetent and unfit health care providers to the extent possible."
CAC is greatly concerned about the lack of control of the unregulated professions. We feel that among the unregulated practitioners there may be questionable therapies used which are based on unusual and untried treatment whose safety and/or effectiveness has not been demonstrated. Consumers must be made aware that some harm could come to them when they receive treatment by alternative practitioners, since such treatment may unduly delay needed help from traditional medicine. Also, CAC believes that some of the unregulated practitioners may use false degrees, titles, variations, abbreviations or an equivalent in another language to persuade the public of their training or expertise.
The association therefore recommends that the Ministry of Health undertake a review of alternative health care therapies. CAC (Ontario) further recommends that truth-in-advertising provisions should be enacted to prevent those not regulated by a professional body from misrepresenting their activities to the public through false advertising.
CAC believes that the legal language embodied in Bill 43 and its companion bills will not be readily understood by the lay reader. We would like to make a strong case for the provision of clear, simple guides to the legislation written in plain language. Consumers will also need guidance as to the qualifications and scope of practice of each of the professions involved.
Beyond the present acts, but of equal importance to consumers, would be a list of the training/qualifications of each kind of practitioner as required by each college. Many questions can arise in the minds of consumers, such as; how long does a chiropodist train? What kind of degree does a practical nurse have? What is the difference between an optician, an optometrist and an ophthalmologist? What is an endodontist? Is a nutritionist the same as a dietician, and so on. A glossary of all the terms, restricted or not, would be useful and is definitely recommended. Consumers need to know the definitions of the large variety of practitioners. This could possibly be accomplished through a fact sheet.
Consumers, particularly the disadvantaged, have always faced a challenge in accessing information. How can consumers find out where to contact an audiologist, occupational therapist, psychologist or the affiliated college? Will each college have a listing in the white pages of all telephone directories in Ontario?
A further problem arises. For example, how will consumers know that the appropriate college for a speech therapist or speech-language pathologist is the College of Audiologists and Speech-Language Pathologists of Ontario? In the Toronto telephone directory at present, most of the individual colleges are found under the key word "college." However, most regions outside of the Toronto area lack such listings.
Information regarding the complaints and discipline and appeal process also needs to be available to consumers. The onus for providing this information should be on the appropriate college. A description of the Health Professions Board and its function should be made available to consumers upon request. Information should also be available to consumers about those professions which are not covered by insured health benefits, and under what conditions and limitations, if any. CAC recommends that consideration be given to storing all of the above types of information in a data bank whose contents are readily accessible to the public.
CAC is concerned that sufficient thought may not have been given to the expanded use of the title "doctor." We believe that this expanded usage -- ie, use of the title by chiropractors and so on -- will result in confusion to the public. We wonder what process was used to decide on this expanded usage. What factors were considered? Who was consulted, and which groups favour the expanded usage?
Our association is also disturbed about the use of restricted titles. In each case the title is restricted "in the course of providing health care to individuals."
Many of the professional groups to be regulated provide services to consumers in areas which may not be considered health care, yet are within their scopes of practice, ie, physiotherapists, occupational therapists, psychologists and speech-language pathologists who work in school settings and provide educational support not related to health status. Business, industry and government also use occupational therapists, audiologists and psychologists to provide evaluation and consultation with regard to work performance, organizational issues, quality of working life and vocational career planning. We are concerned that unregulated practitioners will be allowed to use protected titles in the provision of services which are not considered to be health care.
CAC believes that the Regulated Health Professions Act should protect health professionals whatever their work setting. The appropriate section could read: "No person other than a member shall use the title_______________, a variation or abbreviation or an equivalent in another language in the course of providing or offering to provide services in Ontario." In a similar manner, each appropriate section could be altered to contain a statement to deter unqualified individuals from intentionally misleading the public, as recommended in the preface of the Health Professions Legislation Review.
The very narrow scope of the actual restricted titles is a cause for concern. One may not call oneself a psychologist or a nurse but can still offer psychological services or nursing services. One can even claim to give medical services. The question arises as to whether restricted titles are too precise. Physiotherapists feel that "physical therapist" should also be restricted. Other titles which might reasonably be restricted are "nutritionist" and "speech therapist," because these are the terms familiar to consumers. The intent of the section of the act is laudable. However, the resulting practices may not be to the benefit of the consumers of health services. CAC urges a closer look at these sections.
CAC is concerned regarding limitation to certain professions of the "communicating to the individual...a conclusion identifying a disease, disorder or dysfunction as the cause of symptoms." It is unclear as to how much of a departure this is from present practice. We believe that a significant departure from present practice would result in frustration and emotional distress to patients and should be avoided.
Health care providers understand the functioning of the human body in a way that few members of the public do, even those who are health conscious and well educated. At those times when consumers require health care, they often tend to become confused and fearful and are generally very vulnerable. Therefore, an extensive public education process is critically needed. This will ensure that people have the information they need to make informed decisions about their own health care.
A vulnerable consumer seeking health care may not know what questions to ask and may be very intimidated and confused. It must be the duty of the professional health care giver to answer those unasked questions and, ideally, to make written information available to the consumer. Health care providers must be educated to provide the necessary information to consumers as part of their service. The right of the consumer to be informed is particularly important in the area of his or her health. All involved in the system have a special obligation to ensure that consumers receive the necessary information regarding their health care and/or medical procedure.
The act is probably not the place to address this important concern. However, CAC cannot miss the opportunity to make a plea to the ministry to institute a consumer education awareness program in conjunction with the introduction of the Regulated Health Professions Act.
CAC appreciates this opportunity to express our views on this important legislation.
The Chair: Thank you very much for a thoughtful and excellent presentation. We have some questions.
Mr Martin: I also want to thank you for coming forward. It is rather refreshing after we have sat through numerous presentations by groups who represent deliverers of health care to hear again from the consumer. You make some excellent recommendations. It is interesting to see the "harm" clause back on the agenda from your perspective and also the issue of plain language.
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The Chair: Time for a question.
Mr Martin: Yes. You had mentioned in here that it was important for us to be out there listening to the consumer. What is the process you have involved yourselves in to make sure you represent the voice of the consumer when you come to these hearings so we might understand that as well?
Mrs Bushnell: We have about 50,000 members, who are not all active, that is true; however, it is a network. We have eight local associations and a variety of committees. Most of the comments we have made here are based on the national health policy, which then represents a whole lot more consumers, because then it is the national policy.
CAC is three-tiered. We represent the provincial, but there is also the national and the local, so we are sort of in between. We get some grass-roots information and we also get from national. The recommendations we have made are based on these two things, grass-roots information that comes from the locals and also from the national association.
Also, at the Ontario level we have a network of volunteers whom we send questionnaires to. These people are not necessarily CAC members. They are people we have recruited who are willing to answer questions on various issues, and we have had questionnaires about health issues. These are the sources where we get our information.
Mr J. Wilson: Thank you for an excellent presentation. Just to note that earlier on I did ask the staff of the ministry to ensure they inform the committee what their intentions are in the area of a consumer education awareness program. I very much appreciate your point there. Have you been involved to date in any discussions with the ministry concerning such a program in the dissemination of information?
Mrs Rubino: I wonder if this is the time. Yes, we have --
Mr J. Wilson: It is an important aspect of the act. No use having one if no one understands it.
Mrs Rubino: Exactly. Lucienne, do you want to fill them in on our health innovation fund request from the Premier's Council?
Mr J. Wilson: Put a plug in.
Mrs Rubino: So this ties in too.
Mrs Bushnell: Yes, right. This is a little tricky.
Mr J. Wilson: I did not know I was setting you up.
The Chair: I would advise that there are just a few minutes left for questions and you might want to submit that information to the committee in writing.
Mr J. Wilson: Go ahead now.
Mr Jackson: Put it on the record.
Mrs Bushnell: I will do it quickly because we are really at the last minute waiting for the response from them. I hope the letter may not take too long. We have submitted to the health innovation fund of the Premier's Council a proposal to establish as a pilot project consumer health information. This is a partnership between the library of science of the University of Toronto, the public libraries of Toronto and the consumers' association.
Mrs Rubino: And the Toronto General Hospital.
Mrs Bushnell: Yes. What we are aiming to do is to establish a real database in a public library of information that would be consumer-driven. In other words, the consumer phones, asks the information and the database will be developed according to the type of request we get. This is an 18-month project, and the idea is that it is a test pilot and we want to then expand it to the north, the east and the west and all of Ontario. Right now we are waiting for what we hope will be a favourable response.
Mr Beer: With respect to the restriction of the title "doctor," we have had a number of presentations from individuals who are active in related health care fields, speech therapy for example, where it has been put to us that someone who has received a doctoral degree should, like anyone else who has a doctorate, be allowed to use the title "doctor." We have discussed how to balance that off with the MDs and so on. In coming to the conclusion you have, or at least expressing the concern, how would you handle that? On the one hand, one can understand wanting to know who is the medical doctor, but should this legislation be, in effect, restricting other professionals from using a title which has historically been one that is allowed?
Mrs Rubino: I guess one approach would be if they used the title after the name.
Mr Beer: Like PhD.
Mrs Rubino: Yes, PhD, MD or whatever.
Mr Beer: All right. That is one suggestion. In terms of those who are being allowed to use the actual title "doctor," you raised questions here. Is it that you believe only medical doctors and dentists should be able to use that title? Are you opposed to chiropractors and psychologists using that as well? I know you raised the question, but I want to be clear on it.
Mrs Rubino: I am just raising the question. I am curious as to what the process is. How was the decision made? I would think this decision should be made by academia, government, health professions, consumers. I just do not know how those decisions are made now.
Mr Beer: Fair enough. Thank you.
Mrs Bushnell: I would like to add to this too. I agree with you. Somebody who has a PhD deserves the title "doctor," but I think a doctor of philosophy or a doctor in whatever, it does make them experts on human nutrition, for example. Whereas, if it is presented that this is a doctor, a consumer may misunderstand what it is. I think we have to clarify that, yes. Somebody with a PhD, or a physician, is a doctor and the other one may be a therapist. I think that would be much clearer in the minds of consumers.
The Chair: Thank you very much for your presentation. We appreciate your appearing before the committee today. I would remind you that if in the course of these hearings there is additional information you think would be helpful for the committee members, you can submit it in writing to the clerk at any time. Thank you very much.
The committee recessed at 1207.
AFTERNOON SITTING
The committee resumed at 1401.
ASSAULTED WOMEN'S HELPLINE
The Chair: I would like to call on our afternoon presenters, the Assaulted Women's Helpline. Please come forward and introduce yourself. You have 20 minutes for your presentation. We would ask you to leave a few minutes for members to ask questions.
Ms Kneen: Good afternoon. My name is Cathleen Kneen. I am speaking on behalf of the Assaulted Women's Helpline with reference to Bill 43.
Our major concern is the diagnosis clause, paragraph 26(2)1, which prohibits "Communicating to the individual or his or her personal representative a conclusion identifying a disease, disorder or dysfunction as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the conclusion."
The Assaulted Women's Helpline receives between 1,000 and 1,200 calls a month from women in the greater Metropolitan Toronto area who have endured assault or abuse of many different sorts. Our role is to listen to women who call the helpline and assist them in making informed decisions about their situations.
Women who call us have backgrounds which include childhood abuse, incest and sexual abuse, as well as recent violent assaults. Under this clause, we would be unable to suggest to a caller that there might be a connection between the memory of these events in her life and the present crisis which caused her to call the Assaulted Women's Helpline, particularly in so far as the woman has trust and confidence in our knowledge and abilities.
For example, we are well aware of the connection between incest trauma and self-injurious behaviour. Under this clause, we would be unable to suggest that the incest a caller suffered is related to her current "dysfunction," her suicidal or self-injurious feelings or actions. This makes it impossible for us to be helpful to her in developing her real options.
One of the basic principles of the Assaulted Women's Helpline is that our job is not to make decisions for women, but to empower them to make their own decisions by giving as much information as possible. This clause would destroy that relationship, creating a situation in which we know something we cannot say which might be of help to her.
Another issue for us is referral. There are times when we might wish to refer a caller to a practitioner who is not covered under this act but who has a particular skill and sensitivity to the needs the caller has divulged. Such a practitioner would be unable to diagnose our caller's complaint, or would be put in a totally untenable situation in which the client must rely on faith that the practitioner is doing something useful, since it would be illegal for her to be told what is being done and why it is being done. Again, this destroys the helpline's basic principle of putting power in the hands of the woman.
What it means for the helpline is that we cannot refer to these sensitive and, we believe, effective practitioners. We are stuck referring to one of the regulated professions who may never have had any training and may have no insight whatsoever in the areas with which we are concerned.
Women have been controlled by abuse. It is time for them to be enabled to take back control of their lives and their choices, including which healers they choose to work with.
In the light of the serious problems this clause would cause for the Assaulted Women's Helpline and our work, we propose that it be struck from the act. We believe that the concerns which prompted its inclusion are adequately covered by the clauses which ensure that nobody may represent themselves as being a medical doctor or nurse or one of the regulated professions, with the weight that their diagnostic opinion would thus carry, unless they are properly licensed.
Mr Owens: Thank you for your presentation. One of the intentions behind this piece of legislation is, in fact, to open up the practice of medicine to women. I agree that women have been treated as second-class citizens, as I said yesterday, and that they have been prisoners of abuse.
My question is around the issue of referral. I am wondering if you could explain more fully how you see the diagnosis clause as being problematic with respect to your ability to refer to other groups or organizations.
Ms Kneen: It is a question of who would be restricted from doing what under this particular paragraph. The fact is there are numerous practitioners, counsellors in particular, to whom we would like to refer but who would be prohibited from giving any diagnoses, and, therefore we feel, probably any effective assistance to a client, the way this is written. That is the problem. They would not be regulated. These are people whose training comes from outside the regulated professions but who we believe, because of our experience and our knowledge of the field, would be effective supports for the woman. I am thinking particularly of women who are dealing with some of the more difficult areas that we encounter, the aftermath, particularly of incest.
Mr Owens: Just a quick supplementary to legal counsel from the ministry. I am concerned about how far the net goes. I wonder if we have had any opinions with respect to that, and what that opinion is. I am becoming increasingly uncomfortable with how far this legislation goes.
Mr Wessenger: Yes, counsel will answer that.
Ms Bohnen: In my answer I would like to focus on the particular concerns that you have heard now. It is our conviction that this controlled act would not in any way restrict a counsellor/therapist volunteer from saying to a woman, "Your distress may be related, or is related, to previous events in your life." The controlled act focuses very precisely on diseases, disorders and dysfunctions, so any causal connection can be drawn to events, things that have happened to people in their lives, without having that causal connection brought within the ambit of this controlled act.
Mr Owens: I guess then the problem would be if the woman says something about hands not being functional or properly functional and the person says, "Well, that is probably as a result of abuse." Is that where the distinction would be made?
Ms Bohnen: I do not know that I quite caught the words that you used.
Mr Owens: If the client is sitting with one of the referral folks whom she has been sent to and she complains that her hands are not functioning properly because they have been broken four times, and the therapist then says, "That's probably as a result of abuse at the hand of your partner," is that where the line would be drawn?
Ms Bohnen: That would not be covered by this controlled act at all because the counsellor has not said, "Your hands are hurting you because you have arthritis." You have not identified a disease as the cause of this person's symptoms.
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The Chair: Would you like to ask a question or make a comment?
Ms Kneen: Yes, I would like to make one point of clarification and ask a question. One is that our counsellors are not volunteers. I believe your legal counsel used the term "volunteer," so I would like to have that clarified.
The other is, is it the intent and the wording of the act, then, to cover only physical disorders and not mental disorders of any sort?
Mr Wessenger: I think what we are examining is within the whole health field, the mental health field as well as within the physical health field. But I think the question is, what is health? I think it is the intention not to cover counselling aspects at all within the framework of this act. Certainly that is the intention.
Mr Jackson: First of all, I would like to say that this is an extremely complex and sensitive issue, but also that the health professions generally are not up to the level of awareness and understanding to treat this properly.
The first problem, as I understand it from what has been shown to me over the last seven years, and the concern from those groups associated with assisting in the empowerment of victims, is that there is documented evidence of inappropriate treatment being provided in this area. I can list several incest cases I am working with in my riding which confirm this.
The second concept that we have to be careful of here is that if the referral is to a health care professional, the law states clearly that you must contact the police. This was part of the tension that existed, I believe, between the current chairman when she was the the minister and I was the women's issues critic. We had some disagreement about intervention services that are provided at a community-based clinic versus those that are provided in a hospital setting.
We have to be very careful here because this does not comfortably fit in with the health profession delivery network for victims of violence, particularly rape and incest, in terms of awareness and understanding. In fact, some of the best therapists are previous victims who have come to the point of empowerment and are in a position to help. They are not classed as professionals. I think that is at the nub of the concern when the women's groups have contacted me about this point.
Can you can confirm that what I am saying is part of the concern here and how we are to struggle with maintaining the independence of the support groups that are involved, in various settings? It is not just with the helpline. It is abuse shelters and in certain rape crisis centres as well. There is a range of programs there that are independent of specific health profession linkages.
Could you comment about those areas, because that is where I see our problem, until such time as we have more women psychiatrists, more access to awareness in the courts and so on, which is a much more complex issue.
The Chair: I am going to intervene for just one moment with a request of Mr Jackson, and that is first, that when you are questioning witnesses, you ask questions. Second, the Chair would appreciate it if, in referring to conversations from the past, you would be more specific rather than putting words in someone else's mouth. I remember no such meeting with you to discuss the issue that you have just put on the record, and I object to your comments.
Mr Jackson: That is an invitation to clarify, former Madam Minister, the presentations that I made in the House to you in question period and at other times with respect to funding of rape crisis centres and your responses that you were expanding access in a hospital setting, and my --
The Chair: I would suggest that this discussion is inappropriate at this time and ask that you confine yourself to questions of the witness.
I am going to allow you to answer the question if you can figure out what it is he asked you.
Mr Jackson: I agree. Your understanding of this issue is not the issue.
Ms Kneen: I think the best response I can give to the question as I understood it is that, indeed, there is a substantial amount of expertise in the areas of concern that arise around the Assaulted Women's Helpline. They are not simply matters that arise from acts of violence which the woman has endured in the immediate past but those which have caused trauma. That trauma can then become a basis for later action. There is a question of some kind of diagnosis in that kind of assessment, and it is at that point that we have substantial concern because we recognize that on the one hand, there is, I understand from what you have been telling me, an intention not to include us and our colleagues under this particular clause. But if we are not specifically excluded, then I am not sure how we can go on doing what we feel it necessary to do.
Mr Beer: The Schwartz review team looked at this over eight or nine years. They have come forward with something which they feel is a balance, so it seems to me it is incumbent on us, if we are going to recommend changes, that they are clear and present and are things that, in our judgement, with other advice and so on, need to be changed.
I guess what I am still struggling with, around those who are counselling or the various people such as yourselves, is to see how what you are doing could be interpreted as somehow going against the act. When I look at the example you have used and the things you are doing, the process would be what? Using the example in your paper about the connection between incest trauma and self-injurious behaviour: You are discussing that with the individual on the telephone, and then presumably that person later on, for some reason or other, is upset with you or whoever it is she was talking with and decides to launch a suit of some sort. That is the concern, correct?
Ms Kneen: I would assume that is the way it would happen.
Mr Beer: But does there not have to be a sense that you are, in effect, a health care professional? I am trying to see how the advice you are giving is communicating a diagnosis as opposed to a considered opinion. I think that becomes a fundamental connection, and I sense you are quite certain that the opinion you are giving is contrary to the act. What is your basis for that?
Ms Kneen: Perhaps certainty is a strong statement. I am here --
Mr Beer: Severe doubt.
Ms Kneen: -- at this point in the proceedings to raise this as a concern. I am not a lawyer. I have not spent eight years studying this. Obviously it is a grey area, and I am presenting it to you in the hopes that it can be clarified and we can continue to do our work, because we feel it is essential.
Mr Beer: You are quite right, and I think everybody agrees. We want to make sure that you can continue to do your work, and I think that is why this is a concern, but I think we also have to try to determine, in terms of the concern you and many others have expressed, if this really does do all the things that people have suggested might happen and what the remedies are.
Ms Kneen: The English language is a wonderful and very slippery tool, and I am not sure what the term "diagnosis" means and whether it covers the kind of considered opinion which a professional counsellor might give to a woman in trouble. I do not know, but I would like to be really, really clear because we are very nervous about this.
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Mr Hope: You raise a good point, that you are not a lawyer, and as I am hearing you, as you read it, you feel you could be in jeopardy with the diagnosis clause. The way you read it, not being a lawyer -- and this is what people are going to read -- it is saying you could probably be in jeopardy and you do not know how far you can go. That is what you are telling us. The language itself is not clear enough for common people to read.
Ms Kneen: We would like to have it clarified, if that is not the intent of the law.
The Chair: Thank you very much for your presentation. During the course of these hearings, if there is other information that you think would be helpful to the committee, please feel free to submit it in writing.
Before I call the next witnesses, Mr Jackson.
Mr Jackson: It strikes me that this particular deputation lends itself to a response from the women's directorate, part of the current government, and I am not 100% sure if they are one of the directorates that we are checking with in this regard. I know we are checking with disabled persons and the ministries of Community and Social Services and Health for follow-up meetings --
The Chair: If you would like to make that request for the meeting of the 17th, that is duly noted.
Mr Jackson: I would appreciate if that could be noted or requested. It would not be a long meeting, but this seems to be the major focus of that ministry at the moment.
ONTARIO SOCIETY OF PUBLIC HEALTH DENTISTS
The Chair: I would like to call the Ontario Society of Public Health Dentists. We would ask that you begin by introducing yourself to the members of the committee. You have 20 minutes for your presentation, and we would ask, if you would, to leave a few minutes at the end for questions from committee members.
Dr Williams: I am Birt Williams. I am a dentist, graduated in 1964, University of Toronto. I work at Brant County Health Unit as its director for dental health services. With me today is Dr Patricia Main, a colleague who works at North York as their dental director. We want to thank you today for allowing us an opportunity to talk on section 3 of Bill 47, An Act respecting the regulation of the Profession of Dental Hygiene. We wish to present to you our concerns as they relate to the scope of practice of dental hygienists.
Under the act, as it now reads, a hygienist could set up an independent practice and, without restriction, provide preventive and therapeutic services without either supervision or instruction from a dentist. In all public health programs the provision of community dental services is delegated to dental auxiliaries with direction, sometimes of an indirect nature, because we recognize the hazards that are inherent in both the procedures that are performed for patients and in the agents that are used.
The provision of preventive or therapeutic clinical services, as simple as they may appear, is not without risk. Improper use of fluoride rinses and tablets, for example, could result in enamel fluorosis, which is an irreversible condition. Some topical fluorides are of sufficiently high concentrations that they could produce morbidity as well as mortality if swallowed. The apparently simple act of polishing teeth without the required medical history, as well as the ability to interpret the implications, could generate medical problems of a serious nature. These risks are reduced or eliminated if the clinician has adequate knowledge to understand the nature of the agents that are being used, as well as an understanding of how and why existing medical conditions may dictate an alteration in or redirection of a treatment plan. A decision whether to treat or not, to seek consultation or refer a patient involves knowledge, training and skills beyond those that hygienists now possess.
The Ontario Society of Public Health Dentists feels that it is appropriate for public health dentists to delegate some duties to dental hygienists. This position was well represented in the attached brief submitted to the Health Professions Legislation Review. This is based on the rationale that a public health dentist is equipped, because of his training as a dentist, to diagnose and plan treatment effectively for both individuals and communities. We feel strongly that all treatment provided by a hygienist should be under the direction of a dentist. In public health this may be achieved through standing orders, defined performance standards and reporting mechanisms, clarification by telephone and regular on-site inspection of performance.
In the area of dental health education the information provided must be timely, accurate and reliable, and must be based upon properly conducted and understood statistical evidence. Training in epidemiological and statistical methods are an integral component of the provision of community dental health programs. Dental hygienists do not possess the necessary background in these areas. Thus, in order to evaluate or interpret research materials, they depend on accurate information and the direction of a qualified, competent dentist who has had specialty training in these areas.
By being able to delegate some responsibilities to dental hygienists, community dental programs can achieve more cost-effective delivery of publicly funded programs than would otherwise be possible, while protecting the patient and the public. Should a dental hygienist operate as an independent practitioner, there would be increased risks to patients from allowing a person with insufficient knowledge and skill to provide services that have the potential to create health problems for the recipient.
Most effective and efficient care is achieved when the dental hygienist functions in collaboration with the dentist. It is our contention that comprehensive patient oral health care, whether individual or community-based, cannot be achieved if the dental hygienist is an independent practitioner.
While we are required to speak to Bill 47, I would ask Dr Main to comment very briefly on a section of Bill 49.
Dr Main: Bill 49, in fact the entire new legislation, has quality assurance as a major thrust, and public health dentists have felt that was something they could embrace wholeheartedly. Attached to the brief is a document we have prepared to try to further define the scope of practice of public health dentists as a specialty and the ways that continuing competence and quality assurance might be measured as a help to the college in looking at this non-clinical specialty. We thought you might be interested in having a look at that and we commend you for the inclusion of quality assurance for all health professionals.
Mr J. Wilson: Thank you for the presentation because I found your comments on Bill 47 to be interesting. I am just looking for a clarification. The way I read the scope of practice for dental hygienists and their controlled acts is that in all cases, at least in the controlled acts, those acts are performed on the order of a dentist. Could you just clarify your comments about some of the things they are able to do that perhaps are not on the order of a dentist? I know you are looking at the definition of the scope of practice.
Dr Williams: Two things seem to be contradictory. You are looking at section 4, is that correct?
Mr J. Wilson: Yes, sections 3 and 4.
Dr Williams: They say they can do these things: scaling of teeth, root planing and curetting of tissues on the order of a member of the dental college. But under scope of practice, you will notice that the first section says, "The practice of dental hygiene is the assessment of teeth and adjacent tissues and treatment by preventive and therapeutic means and, on the order of " they can do some of these other things.
Mr J. Wilson: You raise a very good point. I was just wondering if we could have a comment on that from legal counsel. It seems to me the first part of the scope of practice is simply a definition and that where any act takes place it is on the order of a dentist. But perhaps I am wrong.
Mr Wessenger: I will let counsel clarify that for you.
Ms Bohnen: I think you were correct in your understanding. The intention is that the controlled acts authorized to dental hygienists -- scaling teeth, root planing, orthodontic and restorative procedures -- do require the order of a dentist. However, in addition to that, the review believes that dental hygienists do not require an order to do such things as teaching proper dental hygiene, participating in preventive dental health programs, performing procedures which in the review's opinion were not sufficiently hazardous to warrant making them a controlled act, and specifically, applying topical fluoride, as an example.
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Mr J. Wilson: And those procedures, I understand, would be further defined by the hygienist college, with approval from the ministry, through regulation.
Ms Bohnen: The controlled acts authorized to dental hygienists which require an order are as you see them. What other activities dental hygienists may engage in, and the standards with which they will do them, you are right, are the domain of the College of Dental Hygienists, and if they appear in regulation, then they are reviewed and approved by the Minister of Health and the government. But this does leave a sphere of independent practice for dental hygienists in the sense that they do not specifically require a dentist's order to do low-risk, non-invasive procedures.
Mr J. Wilson: Thank you for the clarification. I understand then, it is the witness's intention that all acts should be under the supervision of a dentist?
Dr Williams: Not necessarily supervision, but certainly on the order. The business of providing a topical fluoride is not without serious risks in some cases. This business of polishing your teeth does cause something that is known as bacteremia, which could be serious if the person is at risk.
Mr Beer: In the way you practise currently through the public health units, how do you direct the work of the dental hygienists? I gather in some cases it may be direct but in others it is some other form. How is that determined? What do you mean by that kind of link?
Dr Main: When we talk about hygienists being supervised by direction, we are really talking about having standing orders, having clearly laid out procedures, bringing staff in on a regular basis and calibrating, standardizing what they do; checking their knowledge base, being available to answer questions at all times so that when they have a patient for whom they really do not know what a medical condition is, we are there at the end of the telephone to talk to them; doing on-site visits, doing the regular checkups, doing quality assurance with them; not physically present at all times, but very much controlling what they are able to do and really understanding the limits that we place on it.
Mr Beer: In other words, a dental hygienist can go, for example, into a home for the aged through the public health unit and work with someone there, with a resident; but how would that contact be made? Would that come through the public health unit? I am just trying to see how that connection is made so that there is an essence of control over what that individual is doing.
Dr Williams: Basically the dentist would most likely do the examination of the person, decide what has to be done and decide if the treatment can proceed by using a hygienist.
Mr Beer: In that case, it would be the dentist who would say: "All right, there are a number of people here, some of whose teeth are essentially fine. What I want is that they will be visited so many times per year and I believe a hygienist can do that," and so that order would be set out.
Dr Main: It would not be a written order.
Dr Williams: Medical history is extremely important in these cases. You can say: "Patient 1, 2, 3, 4, it's all right, you can go ahead. Patient 5, I need to consult, so you can't go ahead."
Mr Jackson: I note with interest your point in the second paragraph on page 2 that there is more cost-effective delivery of publicly funded programs with community dental programs. That is under the current matrix, most of which is institution-based for the elderly, but as we move more to a model of hospital in the home and home-based care, how do you see the supervision of the hygienist operating in a person's home? How do you see that working, or has there been any consideration about extending delivery to that level?
Dr Williams: I could not see any difference in the way the person is going to be controlled. As a dentist, you are the one who is really going to be in charge of what happens. It is a question of delegating. Once the person is in a situation where the work can be delegated, there is no reason why it cannot be delegated, but there has got to be some control over who is going to be treated by the hygienist.
Mr Jackson: But when you are delegating, for the simple act of accountability, in an institutional setting the dentist can be on site, and where there is a questionable case, then the dentist can visit the patient. It is quite cost-efficient in an institutional setting. It is not cost-efficient if the dentist has to be called in to visit a person's home because the hygienist, upon a regular visit, indicates there is a problem or he or she needs guidance and direction.
Dr Main: Can I perhaps clarify something for you? When we are working in institutions, there is not normally a dentist there at all. We are working in homes for the aged, collective living centres. There are no dentists there. There are no dental personnel attached to homes for the aged in most cases. So we would be the dentist. It would be us that would have to be the dentist. As the public health trained dentist, we would be the one setting up the orders. It is really no different whether it is a hospital in the home or a CLC, a community living centre, because there would not be a dentist regularly there.
Mr Cordiano: I would like to deal with the contention you make with respect to hygienists who, you say, use the fluoride rinses, which could lead to an irreversible condition. Mortality could result in the improper use of fluoride. What you are saying is that a hygienist should not be able to do these procedures unsupervised, without an order by a dentist.
Dr Williams: Yes.
Mr Cordiano: In your opinion, that is too much of a risk?
Dr Williams: Some of them are. Some of the topical fluorides are pretty high-risk materials. Rinses are not to the same degree. This is why they can be delegated even to volunteers, if you can find them. But things like some of the topical fluorides, they are pretty high-risk, yes.
Mr Cordiano: I would just refer that to the ministry, with the view, I would assume, that hygienists would have reached a standard of practice that would mitigate against something like that happening and therefore the review must have felt it was safe enough to proceed. Correct?
The Chair: Mr Wessenger.
Mr Wessenger: I would refer that question.
Ms Bohnen: Some things are so low-risk you can buy rinses over the counter in a drugstore and swish them around in your mouth. Other things are usually found in dentists' offices and places where health professionals work, and people like dental hygienists are trained to use them appropriately.
Mr Cordiano: In other words, the review felt it was not inappropriate for them to carry on with procedures independent of supervision.
Ms Bohnen: The review thought the topical application of fluoride was not sufficiently hazardous to restrict it to anybody. The dental hygienists have told you: "It is hazardous. Restrict it to us without an order." This group of dentists is saying to you, "It's so hazardous that not even a dental hygienist should be able to do it without a dentist's order." Okay?
Mr Cordiano: Very good.
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PRISON FELLOWSHIP OF CANADA
The Chair: I would like to call the Prison Fellowship of Canada. We would ask that you introduce yourselves and leave a few minutes at the end of your presentation, if you would, for some questions from the committee.
Mr Stanley: My name is Ian Stanley. I am a licensed minister in Canada and also the executive director of Prison Fellowship of Canada. My associate is Mrs Donna Stirling, who is the director of communications for this organization. I would like to read our submission to you, and then, as has been suggested, if you have questions, we will try and answer them for you.
The premise: Prison Fellowship of Canada, a national registered charity working with prisoners, ex-prisoners, young offenders and their families, expresses grave concern over the wording and implications inherent in section 26(2)1 of the proposed Regulated Health Professions Act, 1991, known as Bill 43.
It is acknowledged in section 26(2)1 of the act, known as the diagnosis clause, that the words "disease," "disorder" and "dysfunction" are necessary when making an assessment. However, the present reading of this section does not differentiate between assessments made by regulated and unregulated health care practitioners. Therefore, the potential exists for disgruntled clients, not the government, to prosecute all unregulated workers because they are not excluded and/or identified within this diagnosis clause.
Recommendation: There is another option which can allow unregulated health care practitioners to make assessments without facing the possibility of prosecution. Rather than enter into a lengthy discussion to define and interpret disease, disorder and dysfunction in the assessment process as it relates to regulated and unregulated health care workers within the present wording of section 26(2)1, unregulated workers can be protected from prosecution by an addition under section 26(2)1. We therefore recommend the following:
"26(2)1a. Section 26(2)1 refers only to those regulated workers defined as a `health profession' as set out in schedule 1 of this act. All others (unregulated workers) are not bound by the terms, conditions or prohibitions of this act."
Now some background: Section 26(2)1 of Bill 43, the diagnosis clause, describes a controlled act as occurring when an assessment of a problem is shared with an individual, by identifying a disease, disorder or dysfunction. To clearly define the words "disease," "disorder" and "dysfunction" used in this section of the act is not important for the continuance of reputable and much-needed services to individuals or family units by the professionals as set out in schedule 1.
The regulated health care workers set out in schedule 1 cannot possibly address all of the social and psychological needs within Ontario, by virtue of the sheer volume and magnitude of disorders and dysfunctions prevalent, not only within institutions but in both rural and metropolitan areas.
The repercussions of this bill within our criminal justice system are unfathomable. Correctional facilities are bulging as crime continues to escalate. Without unregulated practitioners, Ontario does not have enough regulated mental health practitioners to handle the overload.
While we are convinced that the present government of Ontario would not consider the prosecution of unregulated health care practitioners, there exists a grave possibility that juveniles incarcerated in open or closed facilities under the current Young Offenders Act, as well as all persons incarcerated in federal and provincial prisons and detention centres in the province of Ontario, will openly test in the courts the present working of this section for the simple purpose of disrupting the political and judicial process and/or destroying an unregulated worker to whom they have taken a dislike. For example, there are tens of thousands of unstable clients in our youth, provincial and federal correctional institutions in Ontario, as well as those under parole supervision. In Kingston alone there are nine federal penitentiaries, and I believe they house approximately 4,000 inmates.
If this law is passed as is, all government of Ontario and government of Canada employees, including salaried religious chaplains, correctional workers involved in inmate assessment, ie parole officers, and social workers will be placed in jeopardy as unregulated health care workers.
There is no doubt that the current wording of paragraph 26(2)1 will be tested in the courts once the understanding of it becomes common knowledge within all strata of society.
If the words "disease, disorder and dysfunction" are not defined by the act, the courts will be left to define them. If some solution is not found within the present wording of this section of Bill 43, the counselling and support services now enjoyed by Ontario through its social workers, ministers of the Christian faith and other religious orders, crisis centre counsellors, correctional staff, young offender workers, etc, will be in a position to be prosecuted and fined $25,000 and/or jailed for six months, or both.
In addition to the unregulated professions identified above, government employees involved in policymaking which results in the writing of new laws could be liable under Bill 43 because they will have to make assessments about social and personal dysfunctions and disorders in an attempt to address social ills.
Conclusion: Any person actively involved with another, in which there is an attempt to affect rehabilitation, makes an assessment. Assessments of individuals suffering from disease, disorders and dysfunctional behaviour must include the mental and emotional as well as the physical diagnosis.
Prison Fellowship is specifically engaged in addressing disorders and dysfunctions within the prison community and/or their relatives. Institutions have more than their share of people feeling guilt, shame, bitterness, anger, depression, etc. Most individuals who are incarcerated in either adult or juvenile facilities come from dysfunctional families in which drugs and alcohol, abuse, neglect and illiteracy reigned. But in making this statement, an assessment has been made.
Prison Fellowship's work across Canada is conducted on a weekly basis in some 44 penitentiaries. We could also include detention centres and provincial prisons as well as federal. It is conducted by carefully trained and screened volunteer workers who engage in dialogue with inmates to help them address the causes of their incarceration and how they might correct their thinking and behavioural problems upon their release.
Prisons, along with untold other institutions, depend heavily on the assistance provided by volunteers because of budgetary cutbacks and staff shortages. To place such valuable community resources in jeopardy would not only damage clients but place upstanding citizens at considerable risk because treatment by unregulated health care professionals would be unavailable.
Prison Fellowship programs have been recognized by federal and provincial correctional authorities as being needed and effective in bringing about positive behavioural changes among those clients with whom we have worked. The current wording of this diagnostic clause would place this and all other vital community service/volunteer organizations, we believe, in jeopardy in Ontario.
Mr Beer: This issue has been the dominant one today in particular and I am not sure whether as the day goes on I am getting clearer or more confused. Suffice it to say that we recognize that if you and others who have been here believe there is a problem, then we have to find an answer to the concern because it is not our intent, the previous government, this government, the third party, all the members of this committee, to in effect wipe out the kind of service --
Mr Stanley: Unregulated workers.
Mr Beer: -- that goes on. In trying to deal with it, we have had a number of recommendations and I am just wondering if perhaps you are aware of some of them that were provided by the Coalition of Unregulated Practitioners.
Mr Stanley: No, we are not.
Mr Beer: Is it your sense in trying to deal with this that it would be best simply to have some kind of exemption made or do you have some advice? I appreciate it is not up to you to define the wording exactly, but do you have some advice how we might approach this?
Mr Stanley: We had a number of meetings in our organization to discuss what is the most practical way, the easiest way of providing not only protection for those receiving counsel -- which is what this government is attempting to do, and I do applaud that; I think that is very valid -- but we have left this other area of the unregulated work, and it seems to me, as we have studied the act, that paragraph 26(2)1 is pivotal in this debate.
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Mr Beer: Yes.
Mr Stanley: I do not think it would be, in our opinion, in the government's best interest to begin to define "disease, disorder and dysfunction." That is our personal opinion because you get into interpretation and definition and it goes on and on. Therefore, what we are saying is can we make an addendum to 26(2)1 by simply saying this act applies to the professionals as listed in this act, but it exempts unregulated workers in this field?
Maybe that is too simplistic for the government, I really do not know, but it is an approach. It is a recommendation that we are making to you as a committee to pass on to the government for serious consideration.
Mr Beer: That has been mentioned before. Let me just explore it. There is a certain logic to doing it that way, but then how is one protected? Where does the protection come if someone who is unregulated in fact provides a diagnosis, or however you want to call it, which in fact leads to some kind of harm? Again, we are probably saying that 99% of people are going to act in an appropriate manner, but we still have to be conscious of the 1% that does not.
My initial concern with having that sort of clause is, how then does one deal with those who are unregulated who may provide a "diagnosis" which leads to --
Mr Stanley: I think the problem we are faced with here is that to try to cover within some form of legislation all the possibilities that may occur is an enormous task for the Legislature. It is almost impossible. I think at some point the government has to say: "This is where we are going on it. Let's put the bill into practice and let's see what happens with these unregulated workers to see if there are any real complaints coming from that particular source of counselling." If there are, then you have something more tangible to work with, do you not, in making modifications to the bill.
For instance, I would just like to draw your attention to section 28 of Bill 43, because that has a specific bearing upon Prison Fellowship inasmuch as we are a Christian, religious movement across Canada providing that kind of counsel as well. Section 28, if I may read it, says:
"An act by a person is not a contravention of subsection 26(1) if it is done in the course of...(c)" -- and this is the area, 28(c) -- "treating a person by prayer or spiritual means in accordance with the tenets of the religion of the person giving the treatment."
I would really like to talk to the person who wrote that because I would like to find out from this government what it means by "spiritual means." We acknowledge in Canada, by the fact that we are operating under the Constitution of Canada, that Canada is a religious pluralistic society. For instance, in Ontario right now the Wiccan church, or the church of witches, is sitting on the interfaith committee and is allowed to give counsel to prisoners in the provincial prisons.
I do not want to prolong this; we say God bless everybody, but can you imagine what kind of counsel that group provides? All of a sudden, when you talk about "prayer or spiritual means," you open up the entire, shall I say, Pandora's religious box because I am sure whoever wrote that has studied every religion being practised in Canada and is fully conversant with what they mean by "spiritual means." It is too broad, and this is the problem we are faced with. How do you provide bona fide protection so --
Mr Beer: I appreciate the point you make there and it is interesting to think of some of the implications, but one of the submissions we had today was from the Consumers' Association of Canada, the Ontario wing, which asked us to go back and revisit the question of the harm clause. In its view, that was necessary and we should not leave it out. But of course, many organizations in the various fields have been saying, "No, that shouldn't be here." Now it comes back to your point about the balance.
Mr Stanley: It is the balance.
Mr Beer: I quite agree that we cannot protect all of the people all of the time, if I can turn Barnum and Bailey up on --
Mr Stanley: That is the position we came to in preparing this brief.
Mr Beer: None the less, in your judgement there is an ambiguity in paragraph 26(2)1, where the bias could lead you to be taken into court as opposed to leaving that out or changing it, exempting or having some other clause?
Mr Stanley: That is right.
The Chair: Thank you very much for your presentation. We appreciate hearing from you. If you have any additional information you would like to share with the committee you are free to do so in writing at any time.
Mr Stanley: Would we receive the findings of this committee -- inasmuch as we have made an official brief to the government -- the recommendations of this committee to the House?
The Chair: This committee will be examining the legislation clause by clause and then reporting that legislation back to the Legislature, at which time it will be up to the government House leader to order it for third reading. That is all part of the public record. At the completion of these hearings the documents of the final appearance of the bill will be available to anyone who is interested in seeing it. The clerk is going to give me an explanation. The bills, as passed following third reading in the Legislature, will be available in the government book stores. There are full Hansards of these proceedings --
Mr Stanley: My point is, I do not want to be phoning up the Ontario government every day to find out the status of this bill. The fact is that this committee will know where it sits. Then I would appreciate this committee, if it would do us the courtesy, making this information available to us or having somebody in Parliament making it available to us so we would have an opportunity to respond before the third reading. That is my point.
The Chair: These public hearings are expected to conclude and we will commence the clause-by-clause examination of these bills --
Mr Stanley: As a committee?
The Chair: At the committee, approximately around the time the House comes back into session, which will be at the end of September; September 23 the House comes back. We will be in clause-by-clause discussions through September and likely October. If you contact the clerk's office some time in mid-October, the clerk can tell you at what stage we are in clause by clause and when approximately we expect to be completed, or when you should call back to find out the state of the process.
Mr Stanley: Okay, we will make a note of that, thank you very much.
Mr Beer: It is a sort of witches' brew, is it not?
Mr Stanley: It really is.
The Chair: The process can be very confusing to people who are not familiar with it and we are happy to give you as much information as we can so you can make appropriate representations.
I would like to call now on Candida Research and Information Foundation. They are not here yet. Is CUPE, Ontario Division, here now? No? In that case, the committee will adjourn until 3:15. The committee stands in recess. Excuse me?
Mr Beer: Madam Chair, if one of the other groups is there, could we just go ahead if they are ready?
The Chair: The other presenters are CUPE, Ontario Division, and the Action Committee of Counsellors, Analysts and Psychotherapists. They are not here yet, either. We have a few minutes. If there are any questions that anyone would like to address to the parliamentary assistant, this might be an opportunity for discussion on some of the issues.
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Ms Haeck: One of the things I am becoming aware of is that there are a number of groups who have come forward, possibly under the umbrella of the unregulated health care workers. I was just wondering to what degree they may have made their concerns known prior to this time, or what sort of consultation they were involved in prior to these hearings.
The Chair: Mr Wessenger?
Mr Wessenger: I think I had better give that to staff. They were here before me.
Mr Burrows: During the period of the review I think it is safe to say that the focus was essentially on the people to be regulated. Major consumer groups, one of whom we either have heard or will be hearing from later this afternoon, were participants in the review. But the unregulated groups really, I think, realized the potential impact when the actual recommendations of the review team came down because the focus then changed to looking at the overall impact.
Since that time we have had extensive consultation with various subgroups and groups such as Dr Evans's group that presented this morning. They have been forthcoming with a substantial number of options. I again think it is safe to say that at this point none of them is perfect. There are various degrees of imperfection and it is this task that the committee is presently charged with, and trying to strike that balance has been the difficult thing to capture. But there has been no shortage of input. We have not met with each of the very small groups independently, but I believe we have met with umbrella groups that have represented some of the smaller groups that are presenting.
Ms Haeck: Does that include those groups of people who might be requiring attendant care?
Mr Burrows: Yes, and there is also another level of dialogue that occurs. For example, within the bureaucracy we have had discussions with those areas that are responsible for the disabled, and senior citizens, and they have in turn had two-way communication with the interest groups they deal with on a regular basis. There has been a pretty broad network, I think, of sharing. In terms of some of the more recent developments that we heard about this morning, for example, I know Linda was involved in a meeting last week with a number of the groups where specific wording was discussed on one point. We are certainly not in a position to recommend to the minister a conclusion of that process yet, but we are actively involved in some of those discussions.
CANDIDA RESEARCH AND INFORMATION FOUNDATION
The Chair: The committee will resume and call Candida Research and Information Foundation. Please introduce yourselves. You have 20 minutes for your presentation and we would ask that you leave a few minutes at the end so that committee members can ask questions.
Ms Boucher: I am Barbara Boucher.
In the interests of clarity and in order to establish communication, I would like to declare my understanding of Bill 43, and that is that any practitioner who is not regulated would be forbidden to enact certain designated activities. Is that correct?
The Chair: Controlled acts.
Ms Boucher: Yes, controlled acts. Is that accurate?
The Chair: Mr Wessenger?
Mr Wessenger: Yes, that is accurate.
Ms Boucher: If I am to draw some implications, number one, it would mean that any unregulated professions, were they not to become self-regulated, would have to cease practising?
The Chair: Mr Wessenger?
Mr Wessenger: No, that would not be the case, as I understand it, at all. That would not be the case.
Ms Boucher: All right.
Mr Wessenger: There would still be a role for the unregulated professions.
Ms Boucher: As you can tell, I think that is an area of concern for the public. I would like to draw out possibly five points that would be of interest to this particular group.
First of all, many people's thoughts and beliefs in what healing or being well and healthy is about, relate to some of their convictions around religious, if not educational, material. I think, in this society, were we to limit people's choices in terms of how they want to prevent illness or choose their religion or be educated, we could not constitutionally defend limitations. I think the public feels there definitely has to be the right to choice in this particular area of choosing how you want to stay well and prevent illness. It would be unconstitutional to deny that right to the public if you were dealing in areas of religion or education. Perhaps the same standard would be appropriate here.
Second, I can appreciate that there might be some concern for the kinds of abuses that are potentially capable of happening if practitioners are not regulated. I would hasten to add that our attention has been drawn to that quite a bit lately with what has been happening in the medical profession regarding abuse. Most of the unregulated practitioners are not OHIP-covered and they would not survive without people being willing to pay hard after-tax dollars for their services. I cannot imagine any of them surviving unless, number one, they were providing a valuable service and, number two, in the event of abuse, people would simply cease and desist paying hard, after-tax dollars. So I think the concern in that area, while it may be appropriate on an exception basis, does not appear to me to be an appropriate guideline to make rules.
A third area where I think it is valuable to provide some evidence, is that there have been instances where an insurance company has paid upwards of $10,000 a year for allergy serums -- these are after-tax dollars -- dealing with allergies and related immune system deficiencies, things that fall under the general purview of chronic fatigue syndrome, candidiasis. After the use of various modalities that are not necessarily OHIP-covered nor recognized under regulated professions, the cost became zero. I can speak of that honestly because that is my personal history and I have seen evidence of that time and time again within the network of people who are now exploring candida immune systems, etc. So I would suggest to the government that it is in everybody's economic interest to stop spending money on things that do not work, and to realize some of the very profitable gains in the area of productivity.
There is some insurance company out there that is not paying $10,000 any more, and I can assure you, after 30 years of following OHIP and the traditional medical system, and recovering health completely -- that is my own case -- but more particularly, since the Candida Foundation was featured on national TV, we have handled over 4,000 inquiries in the space of nine months. When we appeared on TVOntario four and a half years ago, they had 72,000 call attempts, which has not been equalled since the time of that airing.
It is very, very clear that the public demand is there. When we hear news reports of the lineups for cardiac surgery in the hospital system and the number of hospital beds being closed down, it just does not make sense to enact legislation that would limit the capacity of the system to supply some complementary alternatives at a time like this when the existing system is so clogged. Our largest problem at the foundation is not to promote demand. Our greatest need is to be able to deliver supply and find a sufficient number of unregulated practitioners who can give wise complementary additional advice to people to get well.
Personally, it has been difficult and sufficiently disgruntling to have spent $15,000 after tax in each of the last five years to get well. That was not OHIP-covered, so my tax dollars are not getting any return in the OHIP benefit system for me. Just as a concerned citizen out there, that is sufficiently disgruntling. But to have this same government that provides OHIP turn around and say, "Now we're going to limit your access and choice to the very methodologies that have helped you gain your recovery," just seems so very self-defeating. I think it betrays the will of a growing segment of the population such as those who are featured on the front page of the Globe and Mail weekly now about their interest in pursuing self-education in methods that are working and producing results.
I would like to pause there and give an opportunity for some feedback.
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Mr Beer: Thank you for your presentation. I sense from your questions at the beginning that you understand this is a committee of the Legislature, made up of members of all three parties, and that we have an extensive piece of legislation here that began under one party, continued under another and is now coming forward under the third, and that the aim of that legislation at all stages has been to find a balance in terms of protecting the public and increasing access, making access to different points of health care. I think we are conscious of that and the intent is certainly not to limit.
In a sense, I suppose, if we had done this 10 years ago, some of the lobbies that are now going to be self-regulated might not have been included because there perhaps was not enough information, or society as a whole did not yet feel comfortable with providing the kind of regulation that was provided; so there are other kinds of activities that are not going to be regulated but which, none the less, can still be done. I sense your feeling is that if this legislation went through, and I want to be clear on this, your organization would not be able to do what it is doing. Is that your contention or your concern?
Ms Boucher: I would like to make it clear that the Candida Foundation's mandate is simply to provide educational services and present information to lay people so that they can make informed choices about how they want to spend their time and money in consuming health care services. We do not diagnose. We are only in a position to say, "We're familiar with this in this field." But, indirectly, my personal shiatsu therapist, iridologist, foot reflexologist, herbalist, homeopath, acupuncturist, rolfer, nutritionist and magnet specialist are all in a position where they will not be able to provide a service. I am here as a lay person, saying "This is my personal experience and I know it is magnified in a very large circle of people who are all interested in pursuing those services."
The Chair: I have had a request from the parliamentary assistant to clarify for the record, if that is acceptable to all members of the committee.
Mr Beer: Yes, actually that was my next point.
Ms Bohnen: The government's view, and I believe it was the view of the previous government, is that this legislation will not have the effect of making it impossible for the unregulated practitioners who are listed to practise. It will restrict them in performing controlled acts in the course of providing health care services, but it will not prevent them from practising and offering their services to their public.
Mr Owens: In terms of your comments with respect to this legislation limiting your access, can you explain that a little bit further? You will still have the opportunity to see your acupuncturist, your magnet therapist and the other groups you have mentioned. I am not quite sure how you see that this legislation is limiting your ability to attend the practitioner of your choice, or in the field of your choice, more specifically.
Ms Boucher: I offer these comments and I think in the political arena people appreciate that perception is everything. As practitioners who invest several hundred thousand dollars to get themselves trained and equipped to offer services, to exist in an environment that is not supportive causes people to decide, "I'm going to go and be a waiter somewhere else because it's just easier."
I think this bill is perceived as a gesture to get around what was originally proposed that would deregulate naturopaths, which is a different issue, so I think there is a concern. You may be very clear in your intention that this will in no way affect the ability of these people to offer services. If that is indeed the case, that perception is not being received in the marketplace. In fact, the opposite perception is what is happening in the marketplace.
Mr Owens: The Ontario Naturopathic Association testified for us yesterday, I believe, and it was my understanding of their testimony that they are happy with the fact that they are going to continue to be regulated under the Drugless Practitioners Act, with a view to working on establishing their scope of practice, again, further down the road to become regulated. I am not quite sure how this legislation is going to limit choices. It clearly opens things up and puts up standards of practice in front of the public and gives people a means of remedy if in fact some harm takes place.
Ms Boucher: What are the standards of practice that it is the government's intention to establish for each of these various modalities?
Mr Owens: That question should probably be answered by the parliamentary assistant.
Mr Wessenger: Yes.
Ms Bohnen: I want to make sure I understand your question. Was it, who will make the standards of practice?
Ms Boucher: I am curious what they are, who would make them and when they would be established.
Ms Bohnen: Each regulated profession is responsible for making its own standards of practice, which are binding on members of that particular profession. Most of the professions are currently regulated and have standards of practice already. The newly regulated ones which probably have informal standards of practice will take on more formality and legal significance after they are regulated.
Some professions have tended to write their standards of practice in regulation form, and those regulations are reviewed and approved by the Minister of Health and the government. Many professions have kept them less formal than that and have written them down but have not transformed them into regulations. But each profession in sum is responsible for its own standards of practice.
Ms Boucher: Hence the impression people have that if this bill goes through and a profession is not self-regulated, that will be imposed on them. That may be appropriate for a group of 5,000 massage therapists who span Halifax to Vancouver. Many of these modalities have four people in Canada who have been trained in the US who can offer the service. It will impose on those people an economic burden and a time-administrative burden to regulate four people in the country who provide this specialized service. I think that is not only onerous; it is not necessarily conducive to the kind of environment people need to be able to pursue these.
Ms Bohnen: I think there is misunderstanding about the breadth of the effect of this legislation and the effect it has on unregulated groups. We probably do not have time today at this committee to clarify all of that, but I or other people in the ministry, I think, would be happy to take the time with you to talk about that in more detail, if that is of assistance to you.
Ms Boucher: I am sure it would be.
The Chair: Thank you very much for your presentation before the committee today. If at any time you wish to communicate in writing with the committee, please feel free to do so. I think you have had an invitation as well to contact and have further discussions with the ministry officials.
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CANADIAN UNION OF PUBLIC EMPLOYEES, ONTARIO DIVISION
The Chair: I call CUPE, Ontario Division. We ask that you begin your presentation by introducing yourselves and leave a few minutes, if you would, at the end of your presentation for questions from committee members. You have 20 minutes for your presentation. We ask that you begin now.
Ms Gignac: Good afternoon. As you have heard, we are representing the Canadian Union of Public Employees. Yosi Derman is a social worker representing Jewish Child and Family Service and CUPE Local 265. My name is Gina Gignac. I am also a social worker and I am presently the president of CUPE Local 2316, which represents the Children's Aid Society of Metropolitan Toronto. With us also is Ian Thompson, who is the associate director for social services for CUPE in Ontario.
The Canadian Union of Public Employees, Ontario Division represents approximately 151,000 members in the province, of whom approximately 30,000 practise in the field of health and social services. We do not stand opposed to the regulation of health professions and do recognize some of the benefits in the proposed legislation, but we are here to talk about some of the implications of some of the aspects of the legislation, and about how these implications could adversely affect both our members as well as the general public and some of our clients.
Mr Derman: I would like to bring to the committee's attention that everyone sitting at this table is a social worker. We have been or are presently involved in dealing in front lines with some very difficult situations regarding children, the protection of children and some of the most disadvantaged people in this society. What we have to tell you is not only an official position, it is also something we feel in our bones every day.
The difficulty we have with the wording of the act is not a direct one, but one of implication with subsection 26(2), which is referred to as the "diagnosis clause": "Communicating to the individual or his or her personal representative a conclusion identifying a disease, disorder or dysfunction as the cause of symptoms of the individual in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the conclusion." The difficulty we find with this particular clause is the lack of definition. It seems to cast a broad net covering not only social workers but also child care workers and many other professionals in the crucial work they do.
Diagnosis of a sort is something that is absolutely crucial to the work we do. A person involved in child welfare must make a diagnosis under the Child and Family Services Act as to whether the child is at risk or not. That is something we are mandated to do. There are other types of diagnosis we do in our work which are not legally mandated but which are totally appropriate to the type of work we do, for instance, diagnosing some marital dysfunction or an individual in need of treatment for drug rehabilitation.
By training, we are very careful about not stepping on the toes of other professions. We are trained not to give medical diagnoses, and in fact to avoid them at all costs, but sometimes we are in the position of explaining to a client a medical diagnosis. In fact, in medical settings sometimes the social worker is put in that position, not his own diagnosis but having to explain someone else's diagnosis.
This clause may well affect us in our everyday work with clients. The potential legal implications are such that, should somebody seek to challenge the work we do, we could easily have to account for our actions in court when we already have to account for them in family court, but in this case it would be a different venue. Some of the difficulties we would encounter might be, for instance, in working with mentally and physically challenged children. Sometimes these children are in our care and there is no one else to care for them. We have to make a decision as to whether this child is, for instance, in need of medical treatment or in need of psychiatric treatment. That could be construed, under the wording of this act, potentially as a diagnosis, not that we intend to give a medical diagnosis, but there is no one else to care for this child and we have to decide. Would this put us at risk in terms of this particular clause? This is a question we are asking.
In terms of the work we do, there is already existing protection for clients. The agencies for whom we work are required to have accountability and complaints mechanisms under the Child and Family Services Act. As well, when we do apprehend the child, we have to account for our actions in family court. Should this refer to us, it is not necessary because there are other means of accountability.
Just to review, our position is that the wording of subsection 26(2) is a potential risk for us in terms of our work. We are already self-limiting in terms of diagnosis. The kind of diagnosis we do is not medical and is not intended to be medical. Sometimes it is a crucially mandated diagnosis that we must do under the Child and Family Services Act and it is a potential risk to us to have wording as broad as this. That is all I have to say right now.
Ms Gignac: There are several recommendations we would like to make, the first being that it is our understanding there are going to be advisory councils put into place under this act. Given the issues that have been presented and given the fact that many of our members are front-line workers and hence have contact with the people we are talking about serving on an ongoing basis, we recommend that front-line workers who are part of the union be invited to sit on these councils and have some representation.
Second, we recommend very strongly that the actual wording in subsection 26(2) either be changed in such a way that the words "medical diagnosis" be put into place so that it is not as ambiguous as it is now, or that the wording in subsection 26(2) be completely eliminated from the proposed act itself.
In summary, we are looking at the diagnosis clause lacking some clarity, given the issues Yosi has already spoken about: that it does present some risk to our members; that we make diagnostic statements and not medical statements -- but we do need to make such statements to work effectively with our clients; and that some of the language we use did actually originate in the social work field.
Mr Owens: I thank you for your excellent presentation. I think you bring another perspective to the argument as to whether social workers want to be regulated. What we have heard to date is that they do want to be regulated. You present some compelling reasons for not wanting to be regulated.
My question is around your proposed solution to the diagnosis clause and using the word "medical." Where do you draw the line between "medical" and "non-medical," especially in the areas of emotional disorders? I think you would be walking a fairly fine line. I am not sure I understand your rationale for using that terminology.
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Mr Thompson: I think your point is well made, and in some ways we would be much more comfortable with the removal of the diagnostic clause altogether, because it is not clear to me where the line is. In my former practice as a social worker I could tell you where the line is. If I am describing family dysfunction, whatever terms I might use to do that, if I am talking about a child who is being sexually abused or physically abused and the emotional impact of that, I can tell you the line. The fact is, that does start to cross into psychiatric diagnosis, which could be construed as medical diagnosis.
When we looked at this piece of legislation, I think we looked at some of the advantages that it might possibly bring and tried to find some kind of compromise that would allow a greater legislative regulation of some acts and still protect our members.
One of the other solutions presented in our paper is that some kind of language could also be inserted similar to the language in the Child and Family Services Act which prevents prosecution or persecution of people for acts performed in good faith.
Mr Beer: Earlier today we had a presentation from the Ontario Association of Professional Social Workers. One of the things they raised was whether, as social workers, you should be within the ambit of this legislation, with your own council and so on. The other was that if not, then they recommended a social work act.
You have appended to your presentation the presentation you made to the Ministry of Community and Social Services in 1989, and I just wanted to be clear because that is several years ago. You had some concerns and doubts about whether the profession should become organized in the way the OAPSW had proposed. Could you just give us some guidance in terms of your position today, either in terms of being under this act or having your own act and thereby protecting you from some of the problems you see with this?
Mr Thompson: I think our position has not substantially changed since 1989. We still have the same concerns. The one that is raised there is that for the most part we are employees, so we are not in a position of being able to regulate our practice. The implications of a social work act and the implications of project legislation and the way OAPSW presented the notion of a social work act really ignores the fact that we are employees and that in a sense we have other reporting mechanisms that we are responsible for and very severe limits on the way we can control our practice. For example, if my supervisor says, "Take another 30 cases or take another 5 cases," I cannot really turn to him and say, "No, that's bad practice, because I don't have time to do it."
I think OAPSW only represents a certain portion of the social work community, and we as legitimately represent another portion of the social work community. When we speak about being encouraged or allowed or invited to participate in advisory councils, we have a very different perspective and a very valuable perspective, because when it comes right down to it, we are the ones who deliver the service. I would think that less than 5% of our membership belong to OAPSW.
Mr J. Wilson: Did I hear you say that the Child and Family Services Act actually mandates you to conduct a diagnosis? Was that the act?
Mr Derman: Certain types of diagnoses, including whether this child is at risk, because it is the worker and the agency that is ultimately responsible for deciding whether this child should remain at home or be put in a foster home or some other treatment facility.
Mr J. Wilson: Does it, within the context of that act, define what a diagnosis is, or is it referring to what would be understood as a social work diagnosis?
Mr Derman: We have to judge if the child is "in need of protection," and then we have to substantiate that. We have to legitimize that before a court within five days of the child being apprehended.
Mr J. Wilson: And it is the understanding that the court understands that you have undertaken a diagnosis in that sense and you are there to justify it. We have a real problem with the terminology of "diagnosis." We have been at it for a couple of weeks now, so --
Mr Derman: The court sees it as our legitimate, legally mandated role to do that. I do not think the question is whether we are diagnosing or not. We have to make that determination. No other agency is mandated to do that. There are other types of diagnoses that we make. Interestingly enough, some of the terminology that has been developed in social work practice has been taken over by the medical practice and now it would seem that those things are considered controlled acts and we can no longer use them, potentially, under this present wording, and this is another concern of ours.
Mr J. Wilson: That is a good point. Thanks.
The Chair: Did you have a supplementary, Mr Beer?
Mr Beer: I have a question -- perhaps for information through the parliamentary assistant. I had forgotten -- and I am glad you reminded us -- that in the Child and Family Services Act there are some protections for social workers in the line of duty, or however it is worded. My question is this: It has been the contention that paragraph 26(2)1 does not in fact cover the kind of work that the social workers are saying they do. Is that partly in relation to acts like the Child and Family Services Act where there is specific reference to protections? I am trying to get a connection, if there is one, in that regard. Or would the argument still be that, whether that was in the Child and Family Services Act or not, this still did not relate to social work?
Mr Wessenger: I will let counsel answer that.
Ms Bohnen: I have not read that act very recently, but I think what is being referred to is the requirement that a social worker make a determination whether a child is in need of protection. Where a social worker does that, the social worker is immune from prosecution. But I think we should re-read the act and come back to you with anything from it.
Mr Beer: I would be interested in that.
Mr Hope: I will pass, being that Mr Beer has already got to the questions I was going to pose.
Mr Owens: A quick question around the application of the section on the Child and Family Services Act. Are you aware of any jurisprudence with respect to whether this -- I gather it is a defence -- has been successful? I guess my question is, has it been tested?
Mr Thompson: To my knowledge, the tests have been somewhat different and so they do not answer that question. I do not think there is good jurisprudence relatively and frequently, and primarily it is civil cases.
The Chair: Thank you for your presentation. If there is any additional information you think would be helpful to the committee at any time, please feel free to communicate with us in writing.
Mr Derman: I would like to thank the committee for listening.
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ACTION COMMITTEE OF COUNSELLORS, ANALYSTS AND PSYCHOTHERAPISTS
The Chair: I would now like to call the Action Committee of Counsellors, Analysts and Psychotherapists. Begin your presentation by introducing yourselves to the committee. You have 20 minutes for your presentation and we would ask that you leave a few minutes for members of the committee to ask you questions, if you wish.
Mr McKenna: I am Philip McKenna, a psychotherapist in private practice. I am joined by Geraldine Fogarty, psychotherapist in private practice, Robert McKay, a trainee in psychotherapy and someone who has been following the progress of this legislation from the beginning. Geraldine will begin by going over the brief, which you have in your hands, and I will pick up when we come to recommendations.
Ms Fogarty: This brief is being presented on behalf of the Action Committee of Counsellors, Analysts and Psychotherapists, ACCAP. We formed solely in response to this legislation when it was introduced by the previous government. Our membership is made up of a variety of unregulated mental health professionals who work in private practice, distress centres and government-funded health care institutions, and we number over 400.
Today we wish to express our concerns and to offer suggestions, specifically concerning subsection 26(2) of the Regulated Health Professions Act, the so-called diagnosis clause, but also with regard to the potential reintroduction of any form of the so-called harm clause. While ACCAP members are generally supportive of the Regulated Health Professions Act and are aware of the need to protect the public from unscrupulous and unqualified practitioners, we are greatly concerned about the wording, which places all unregulated practitioners in an uncertain or untenable legal position simply by doing their job.
In the current draft of the legislation our concern is focused on the diagnosis clause. If made law, this clause would mean that anyone other than a member of a regulated profession who does something described in the diagnosis clause would be in violation of criminal law and would face up to six months in jail or a fine of up $25,000. The clause reads as follows: "Communicating to the individual or his or her personal representative a conclusion identifying a disease, disorder or dysfunction as the cause of symptoms of the individual, in circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on this conclusion."
This clause makes it illegal to do something which is an integral part of our work. Counsellors, analysts and psychotherapists communicate hypotheses, assessments and conclusions regarding disorders and dysfunctions all the time. Sometimes this communication is very clear and direct. In the case of a substance-abuse counsellor, the communication that "You are denying the fact that you are an alcoholic" must be accepted by the client if treatment is to proceed. If section 26 remains as it is, this counsellor will just have broken the law.
Sometimes the communication of a disorder or a dysfunction may be much more hidden. ACCAP comprises a variety of different types of mental health practitioners who communicate assessments in different ways. For some, communicating the nature of psychological problems can be quite subtle. Sometimes clinical terms, as such, are not used at all, and the assessment diagnosis is communicated in less theoretical and more accessible language.
For example, a therapist might say to a client, "The alienation that you feel in your present life is rooted in the isolation which was characteristic of the relationships in your childhood family." Then the direction of the therapy in this case would involve a process where, with the help of the therapist, frozen feelings of childhood gradually begin to thaw and over time the person begins to risk forming close relationships in his present life. This is a very common kind of procedure.
In addition to the original assessment connecting present feelings of alienation to childhood isolation, over the course of this therapy the therapist would be consistently directing the person back to childhood feelings, thereby consistently recommunicating the original assessment. This might happen in almost all the sessions for a time. Therefore, the clause affects not just a one-shot diagnosis but the course of the whole treatment. In this case, as with the substance-abuse counsellor, the therapist has crossed the boundary outlined by subsection 26(2), as we see it.
In both of the above examples, healing will involve working with fragile and vulnerable feelings. Trust is an indispensable element in such a process. It is the presence of just such trust, however, which is precisely the type of circumstance in which it is reasonably foreseeable that the individual or his or her personal representative will rely on this conclusion. In some cases, the therapist may be the first person the client has ever really trusted, in which case the therapist's assessment would have great weight for a time. In the course of the therapy this weight would lessen as the person came to rely more on his or her own conclusions and his or her own understanding of things.
Further, studies of the effectiveness of psychotherapy have concluded that the rapport between therapist and client is the biggest single determinant of success or failure, regardless of the brand of therapy being used. Many clients, especially those coming from alcoholic and other highly dysfunctional families, have grown up among mixed messages, equivocation, secrets, pretences and denial, and they can spot hedging and equivocation a mile away. The trust required in the relationship between the therapist and the client, if healing is to take place, must be rooted in mutual respect. In such a relationship -- in fact, in any viable relationship between two people -- the therapist must be free to be honest and straightforward.
The present wording of subsection 26(2), however, if passed, would make honest and direct communication to a client very risky. The therapist in each and every case of such communication would be breaking the law and be subject to a jail term or $25,000 fine. Regardless of whether we were persecuted, most of us would be guilty of criminal offence on a daily basis. The thought of it makes me nervous and it makes 400 other members of ACCAP nervous. Nervous therapists do not do good therapy.
We have been reassured by the ministry of the previous government and by the ministry of this government that this is not meant to be an attack on unregulated health practitioners as such, nor is it meant to chill them in their work. But this clause, if passed, would have just such an effect. It would on me.
Who and what are we frightened of? Two possibilities come to mind immediately. The first is a situation where the therapeutic process itself might have broken down. An example might be the kind of person who is angry, possibly harbouring lifelong resentments, and who sees in the therapist an authority figure with whom he can get even. A second threat might be the reaction from disgruntled relatives. Here the therapy process is proceeding well, but the people around the client do not like the changes that they see and that are influencing their lives. Parents or spouses, particularly in dysfunctional relationships, can become frightened and angry when once-docile people start to assert themselves. Invariably they blame the therapist: "Everything was all right until she came to see you."
Even though such situations may not be frequent, they do occur, and they are difficult enough as it is. With section 26 on the books, the possibility of ending up in court is real.
It seems absurd to a reasonable mind that an intelligent judge would want to convict any unregulated health practitioner to six months in jail in a circumstance like the ones described above, based on subsection 26(2), yet the law would be on the books. Ultimately, the question the members of ACCAP face is: Which one of us is going to be the test case, with all the time, the expense, the worry, the damage to reputation, and, not least, the impact on the rest of our clients as we are trying to deal with this, which a court case would entail?
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The Chair: Thank you very much for your presentation. Are you continuing?
Mr McKenna: Shall I continue with the other part, then?
The Chair: Yes, please do.
Mr McKenna: We had four suggestions of possible ways to change the diagnosis clause. I suppose my own first wish would be that you scrap it, as you did the harm clause, and maybe for the same reasons -- that as it stands it is pretty much a basket clause and there is no nuance in terms of its respect for ordinary people's own judgement as to where they go for help and so on. It is an attempt, through the legislation, to control everything. I think that is a useless enterprise in general.
If we talk about possible ways of amending it, one suggestion on page 4 is to attempt to identify which disorders and dysfunctions are to be strictly left to the regulated professions. This then gets into some attempt to draw a line through language, through the terminology that we are going to be regarding as the sort of language used in diagnosis and the sort of language which remains publicly usable by people like ourselves who are unregulated.
This might have some future if the area of mental health were clear and uncontroverted, but since the 19th century there has been an ongoing controversy about all the psychological disturbances and whether they are organically based or psychologically caused. There is no hope to get that clear in the legislation, absolutely no hope. You either have to use a sort of basket approach and say that everything that is ever written down in the DSM 3, which is the diagnostic manual, any word that occurs in there can only be used by regulated professionals; or you have to go to just a few agreed terms.
This brings us to number two, in a certain form, where we would suggest you try to say exactly what kinds of disorders you are talking about. The only path I could see there would be if you went to an extreme pole and said something like "disorders that were physically life-threatening," or something like that -- things like cancer, heart attacks, things that actually bring about death. Because, as I said, if you get into the area of mental disturbances like schizophrenia, which are soul-threatening if not physically life-threatening, there is no agreement on what causes these things. Leston Havens, a psychiatrist, an authority at Harvard, says that a word like schizophrenia does not name a disease; it is a syndrome, and we do not know what is under it. We gather together symptoms and we do not pretend to know what is under it.
The clause as it is hopes that out there the medical profession knows exactly what is under everything, and they would hope that anybody treating mental diseases knows exactly what is causing them. We do not; nobody does. We cannot get it in the legislation. You cannot stop people trying to struggle with this new area -- it is still new; it is 200 years old, but it is still very new -- where we are on the frontiers of trying to work out the meaning of these troubles, the causes of them, the appropriate treatments. It is certainly not the role of a Legislature to try to pretend that what is unclear is really clear and could be regulated.
So that is number two, which would be saying something like "only diagnosis of a physical kind." I would say even that would not work because some psychiatrist would say, "Well, that means the whole area of mental health." But you might say, "Physical diseases causing death." That might get you somewhere.
The third idea was to protect the title; that is to say, as long as you do not claim to be a doctor or a psychologist or an optometrist, then you are okay. You are not doing a diagnosis in the sense that this is getting at.
Fourth, and this seems to be the way that people who wish to retain this clause mostly go, is some form of competency barrier. If we go that way, I think we need to express in the clause that it is only gross incompetence that could be challenged in the court. There should be some kind of seriousness in terms of damage caused by such a diagnosis before it could ever come to court. So there would need to be a double barrier to frivolous prosecution of the kind that my colleague explained in her examples.
Finally, the harm clause. We just heard that it stays out. It is a basket clause. It causes harm and would certainly bring about a kind of chill in the unregulated professions. Thank you very much.
Mr Jackson: Without further exposing my own personal eclectic background, I have a working knowledge of Gestalt and the Esalen Institute in California and various therapists there, and know of their work in this province. Knowing that, I have a certain respect for the very delicate kind of work you are doing. You can start out treating a dysfunctional marriage and end up with a deeply rooted discovery of child sexual abuse. These are very sensitive areas. You strike, really, at the root of the concern of where you place yourself. Yet the community at large accepts the fact that your work is meeting with significant results.
With that in mind, and knowing that Ontario is trying to break some new ground in terms of regulating, do you know of any jurisdictions that are proceeding in this area and have dealt with it differently than we are, because my fear is that you will be included.
Mr McKenna: I do not know of any jurisdiction --
Mr Jackson: With that leading edge in terms of penetrating into this area for regulatory purposes.
Mr McKenna: For regulation, I do not know of any.
Mr Jackson: That is what I was afraid of.
Mr Ruprecht: In order to make the diagnosis clause more acceptable to you, you went on to establish in your recommendations what you call the competency barrier, to catch the people who are not competent. Can the accusing party be brought to the point where they would have to indicate beyond the shadow of a doubt that an incompetent practitioner has made a wrongful decision? How do you see that taking place in front of the courts?
Mr McKenna: Supposing somebody brought me to court because, say, they have cancer and I say to them: "Look, you do not need to go to the doctor's. They are just terrible in what they do to you in their treatments. What you need to do is go through visualizations and fight the cancer with me and I will help you." I stop them going to the doctor. I use my authority as a therapist to suggest to them a kind of treatment for their physical illness. Now, if they brought me to court, I would say that they would have a good chance to prove me grossly incompetent in that judgement that "This is the only way you should work. This will cure you."
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Mr Jackson: In other words, you are able to live with this incompetency clause?
Mr McKenna: Yes, but I think gross incompetence should have to be proven. In other words, to avoid frivolous challenges that might come from disgruntled people, you would need to put a strong onus on either the terrible damage that has been done, and that it was grossly, not just a bit, incompetent.
Mr Ruprecht: Just briefly.
The Chair: Sorry, Mr Ruprecht, time is up.
Mr Ruprecht: I see some relationship between Professor Evans's presentation and yours and it might be a good idea to continue in those discussions.
The Chair: Thank you. I very much appreciate your presentation before the committee. If there is any additional information, please feel free to communicate with us in writing.
PATIENTS' RIGHTS ASSOCIATION
The Chair: I would like to call now on the Patients' Rights Association to please come forward and introduce yourselves to the committee. You have 20 minutes for your presentation. We would ask, if you wish, to leave a few moments at the end so that committee members can ask questions.
Mrs Coy: I am Anne Coy, co-founder of the Patients' Rights Association. In case some of you do not know us, I would like to point out that we were not formed with the idea of punishing any practitioner who fell short of giving -- the term we commonly use is "adequate care." I do not like it; if you fall short of adequate, you are inadequate. But simply because, after the death of my husband, whose death was hastened by a medical intervention, the college seemed to think that the only reason I approached them was because I was bitter and not because anything had happened in the course of his care.
Our approach through the years has been to bring about a correction of behaviour rather than the punishment of a practitioner. My view was that it was an avoidable medical accident and let's take some steps to avoid it recurring. I was not very successful. I cannot say, after working on this project for 17 or 18 years, that I am successful now, but I am still trying and we are here.
I would like to hand over the following presentation to my co-workers, we are all volunteers, David Coburn and Harry Beatty.
Mr Coburn: Our focus is almost entirely on the complaints and disciplinary procedures involved in the legislation. I would like to begin by making a point about the process through which this legislation was arrived at. The process we feel was one dominated by professionals. During the long process they took to form this legislation, I was often in a room with perhaps 200 or 300 other people, I would say 280 of whom were health professionals, who were eager to get the rights and privileges that medicine already had, yet there were very few consumer representatives.
Let me refer to a statement by the Minister of Health of the time when I think the bill was introduced into the Legislature for the second time: "Mr Speaker, over the years of this legislation's evolution, most of the consultations have been dominated by professional groups. To consumers I want to say that now it is your turn to speak out." So I hope this committee will take consumers' points of view seriously, and not hesitate to alter this legislation or to consider it as being written in stone.
As we have mentioned, the patients' rights group has been in existence for a large number of years. What we have done, basically, is handle patient complaints and inquiries; that is, people who have had complaints about physicians or other professionals. Mrs Coy herself has handled hundreds of inquiries. She has personally processed dozens of complaints through the college system and has appeared before such boards as the Health Disciplines Board. Our experience is practical experience. It is not just what is written in the legislation. Incidentally, I am sure that Mrs Coy would not want me to mention it, but because some people are involved in the process, I would like to announce that today she has been informed that she was the recipient of the Ontario Medal for Good Citizenship for her work in this regard.
[Applause]
The Chair: On behalf of the committee, we would all like to congratulate Mrs Coy, especially in view of her own modesty. I think that the people in the province of Ontario are very grateful to her for her efforts on behalf of individual and patient rights over the years. I think all of us here, from all three caucuses, are delighted at the recognition of your efforts.
Mrs Coy: Thank you.
Mr Coburn: As Mrs Coy mentioned, the aim of the Patients' Rights Association should be to try to get feedback from patients, in order to help improve the health care system. What we want to do is make sure that small problems do not become bigger ones. We feel that a very good complaint system will help improve the quality of health care in Ontario. I think the suggestions and comments that we make are reasonable ones because we made a submission to the Minister of Health in 1977, and almost all our comments in that recommendation have been supported by major commissions and committees since that time, including the Krever Commission, the Prichard Commission on Malpractice, and the more recent task force on sexual abuse of patients. We are not alone in our point of view and it is supported by official commissions and committees.
Now, a few minutes on our general approach: We cannot make all our specific recommendations today, but hopefully we will in written submissions to the committee. I want to make the point that this legislation solves a lot of problems for the professions but it does not solve the problems of patients. Let me take the viewpoint of patients in the health care system. Something happens which they do not like. What are they faced with? They are faced with three options. They can sue; the Prichard Commission generally shows that very few people, even if they are justified, take that option and even if they do, hardly any are successful. For example, lawyers cost $500 simply for an opinion as to whether a case is worth taking or not.
The other avenue is through the college system and we can document that. The College of Physicians and Surgeons is our major example. The college system does not adequately deal with complaints. Let me give you an example. In one period of time, of 3,000 complaints made to the college, only 300 were heard by the complaints committee. Of those, I think about one in four or five actually ended up in the disciplines committee where there is a formal hearing. Of that number, hardly any were judged guilty. So, what we are looking at is, at various time periods, of the complaints handed to the College of Physicians and Surgeons in Ontario, about 0.8% to 1% of the complaints actually result in a doctor being disciplined for some reason. From our point of view, this shows that the procedure is not adequate.
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The other avenue is, of course, a formal complaint procedure. I would just like to mention that there is no legislated formal procedure or obligation whatsoever to hear patients' complaints in hospital. The hospital is the place where a lot of health care takes place, but there is no formal procedure there. Hopefully, the Ontario Public Hospitals Review will provide a formal complaints procedure in hospital.
So what we are saying is that a patient is faced with these three alternatives. None of them is adequate and the whole system is unco-ordinated. There are major problems with this procedure of patients making complaints to the colleges. For one, thing the public views the colleges as protecting their own members, and despite the fact there is some lay representation in the college, the public perceives the college to be antagonistic to them before they even submit a complaint. I would say that many people do not submit a complaint simply for that reason. We do not think the complaints committee investigations are adequate. Often this consists simply of the following: The patient will write a letter to the college, the college will ask for a written response from the doctor, and they will make a decision on the case simply on that basis. That is not always the case but that happens quite often. We do not think that is enough.
There is nothing in this present legislation to legislate the colleges to advertise their disciplinary function. If I am in Wawa or Brockville or even Toronto, how am I to know that the College of Physicians and Surgeons is the place to direct my complaints? With the addition of the 23 other colleges, you can imagine how complex it is going to be for the public to decide where this complaint is going to go, or whether the colleges have this function. There is nothing in this legislation, as I see it, either for patients or health care providers to be made aware adequately of their own rights or responsibilities. Health care providers are not aware of patients' rights and many patients are not aware.
One of the major difficulties with the legislation proposed is simply the multiplicity of colleges. Patients to whom something happens in the health care system often do not know who is responsible or who is at fault. They do not even know that the person who did it is a physician. Imagine the patient faced with 24 colleges in which there may be one or more health professions involved. They may have to process their complaint through two or three or four colleges. At the same time, what if these colleges arrive at contradictory conclusions. What if one college says, "Oh, it is not the nurse, it is the doctor" etc. We feel the multiplicity of colleges is simply making the process of patient complaints more complex, rather than easier.
Just a few more words, and then Harry can take over. We feel the process is too cumbersome, expensive and complicated. We are advocating a single, central agency outside the college system to handle complaints. The health disciplines would be self-governing in every other respect, other than complaints. I would argue that, just as some people do not believe that the police can adequately investigate cases of police brutality, we do not think that the colleges can carry out an adequate investigation of their own members. If there is not an independent agency, at the very least we think there should be a single agency to whom patients can direct their initial complaints, so that at least they have some direction as to what to do about it.
If the legislation is carried forward, we think it should be a mandated duty of the colleges to make their own members aware of patients' rights, and to make the public aware of their disciplinary function, every one of the 24 colleges. We think there should be full disclosure reporting of the disposition of all complaints and disciplined cases and the reasons for these. For example, the college now reports its complaints and disciplines but does not report how many inquiries or how many complaints it initially received, so the information is not complete.
The professions themselves currently define misconduct and negligence, and it is unclear, I think, to doctors, to other health care workers and to the public what the colleges view as misconduct. I want a clearer definition, even if it is only through precedent, of what the colleges regard as misconduct.
Finally, the college councils are often composed of people who were previously association or union representatives. For example, you can be a chief executive on the Ontario Medical Association one day and a member of the council of the College of Physicians and Surgeons of Ontario the other. I hesitate to mention in this room the doctors' strike in Ontario, but many members of the council of the College of Physicians and Surgeons seemed to have difficulty in deciding what was in the public interest during that particular episode.
I think that is all I have to say, even though there are many particular points we might want to mention later.
Mr Beatty: Just to add a few very brief things to what David said, on page 3 of our brief we outline in point form some of the problems that have been apparent to us and to complainants for many years. Many of these points which we have been putting forward for about 15 years are reiterated in almost the same terms in the report of the task force on sexual abuse of patients chaired by Marilou McPhedran.
Essentially the complainant, who may be concerned about the death of a family member or about being permanently disabled or sexually abused, very serious matters, is required to go into a system that is controlled by the very profession of the member whom he or she is complaining against from the beginning. The colleges control everything from intake. It is someone at the college who talks to you initially about the case. They control the investigation, they control whether there will be a hearing at all that you could go to. At the hearing, of course, members of the college and employees of the college or people retained by it both conduct the hearing and conduct the prosecution.
Of course, the individual has no party status, not even intervenor status. Even talking recently to counsel involved in cases, including sexual assault cases, an attempt to represent the complainant in any way is met with a lot of opposition both by counsel for the colleges -- not just the College of Physicians and Surgeons but also the College of Nurses of Ontario -- and clearly by counsel for the professional complained against.
David mentioned there have been several studies, but I think the major one, because it is most recent and because it talked to individuals, is the task force on sexual abuse of patients which we referred to. On page 4 we have just one excerpt. The report indicated as clearly as it could that the college has simply failed to prevent or police sexual abuse and that major reforms need to be taken. Yet we have Bill 43 with a procedural code that is almost exactly the same as the current system. The final report of this task force is due in September. There are many wide-ranging recommendations. We know that you will be hearing from the task force later on. We would encourage you to give careful attention to their reforms.
Going to page 5, David has already mentioned some earlier statistics that were analysed by a student under his direction. The most recent statistics are an appendix, from 1985 to 1989; again, the complaints committee of the College of Physicians and Surgeons. In the process, they do not give figures as to how many inquiries or initial concerns were expressed to them at intake and were screened out in some way, either because the person was not able or did not want to pull together a written complaint or was otherwise discouraged.
But however many complaints made it from intake to the complaints committee, substantially less than 10% of those got to the discipline committee. Some years it was almost as low as 5%. We do not have figures as to the actual disposition of those complaints, but very likely we have a situation where we would estimate at least 98% of the cases end without any disciplinary action. Even where there is a disciplinary action, even in very serious matters, it is only a reprimand.
Finally, we mention the Prichard report, which is the most comprehensive study done in Canada on these issues concerning professional negligence, liability and compensation. Despite the difficulties of the malpractice system, he found that if you took the number of physicians disciplined by professional colleges for negligence and incompetence and compared it to the number for whom a malpractice settlement or award had to be paid out, we are looking at only between 10% and 20%, so in fact the colleges were picking up only a very small percentage of actual malpractice and negligence cases.
I believe there was a study done by Professors Trebilcock, Dewees and one other, Coyte, at the university. Essentially, they showed in a five-year period, as best they could determine, that between 100 and 200 doctors in the entire country were dealt with in any way for professional negligence and misconduct. As I have said, in often fairly serious cases, that was only a reprimand.
Mr Beer: In your paper you say that you believe an independent tribunal is the most appropriate way to proceed, and not to have the various colleges. We had a presentation earlier today around consumer points of view. I think it is very helpful to have this, because, by and large, presentations have been from those who are within professional groups.
Is it not important, though, in this system, and one of the arguments for the colleges, that the members of the profession itself are involved in both self-regulation and really reviewing their own practice? In your proposal of an independent tribunal, how would you involve the professionals from the different fields so that they would be involved in assessing their own practice?
Mrs Coy: Under the present system in the Health Disciplines Board, completely lay people are able to get any expert advice they need.
Mr Beatty: I should also mention we do not, of course, advocate that the professions should not be self-regulating. Of course they should be involved in education, peer review and so on. It is in the actual hearings that we feel at least some aspect of the process should be more independent, at least in some cases, rather than complete control. Just look at what happened to Mrs Yuz when she tried to pursue. That case is still going on, over a decade later, looking into the tragic death of her son.
Mr Beer: Would you see the advisory council possibly evolving into having that role or being an appeal body?
Mr Coburn: First of all, we think that colleges should be left with defining registration, certain fitness-to-practise procedures, etc. They have a lot to do regarding the self-regulation of the professions, naturally. But regarding complaints specifically, we were thinking -- and we did not go very far with it -- of something like labour mediation. We want to settle things at the lowest possible level, without people having to sue in order to get satisfaction. So we thought of something like a tribunal of judges or arbitrators in which both parties would meet initially and try to settle the issue at the lowest possible level, without discipline in fact. I think in many cases people do not want discipline, they want the particular behaviour corrected before someone else is harmed, and that is our desire too.
The Chair: Thank you very much for your excellent presentation. I know the committee has enjoyed hearing your very thoughtful point of view. If you have anything further that you think would be helpful for the committee in its deliberations over the course of these hearings, I know you will feel free to communicate with us in writing.
I remind all members of the committee, particularly those who have been substituting, to pass on to the other members of the committee any of the documentation and information you have received so that they will have it next week.
The committee will reconvene Monday morning at 9 am in Thunder Bay.
The committee adjourned at 1625.