Legislative Assembly of Ontario

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

MINISTRY OF COMMUNITY AND SOCIAL SERVICES

WORKERS' COMPENSATION BOARD

MINISTRY OF EDUCATION

CONTENTS

Tuesday 17 September 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

Ministry of Community and Social Services

Workers' Compensation Board

Ministry of Education

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:

Bradley, James J. (St. Catharines L) for Mr Cordiano

Cleary, John C. (Cornwall L) for Mrs McLeod

Jackson, Cameron (Burlington South PC) for Mrs Witmer

Lessard, Wayne (Windsor-Walkerville NDP) for Mr Silipo

Sola, John (Mississauga East L) for Mr Beer

Wessenger, Paul (Simcoe Centre NDP) for Mr Owens

Clerk: Mellor, Lynn

Staff: Drummond, Alison, Research Officer, Legislative Research Service

The committee met at 1004 in room 228.

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 sur les professions de la santé réglementées et les projets de loi, 44 à 64, qui l'accompagnent.

MINISTRY OF COMMUNITY AND SOCIAL SERVICES

The Chair: I would like to welcome everyone this morning, and I call first the Ministry of Community and Social Services. The committee asked you to appear, and certain questions were placed in Hansard and on the record. Can I assume you have a statement or a presentation to make before the committee and that this is how you would like to proceed?

Ms Freiler: We are flexible. If you would like us to make a statement, we could do that. Alternatively, we could just answer questions.

The Chair: I think it would be helpful to the committee if you made a statement first and then committee members can ask the questions they would like. Many members may have additional questions that would come from your statement, so that might be a helpful way to begin. Please introduce yourselves.

Ms Freiler: I am Christa Freiler, and I am Zanana Akande's policy assistant. I am here to talk about the social work act or to answer questions about regulation of social workers. This is Frank Wagner, who is the manager of the disabilities unit in the long-term care policy branch. He is here to talk about attendant care and any other questions of the committee.

Mr Wagner: I did review the Hansard questions. What I have attempted to do this morning is to synthesize those questions, basically as I understand them, to address the impact of the legislation on disabled persons, which was certainly a focus of the committee, particularly around the kinds of exemptions for self-directed and non-self-directed individuals, their desire for independence, the impact on the Ministry of Community and Social Services and how people access these services, particularly, again, in the context of the long-term care redirection. I have tried to synthesize my response in terms of those. I think that covers most of the questions around the attendant care issues.

Having attended some of the hearings, I realized there was some confusion as to where the attendant care programs lie at the moment and what the legislative base is, so if I may start with that.

In fact, the redirection of long-term care has as its focus the consolidation of existing programs that provide services to the elderly and disabled persons. The consolidation at the moment involves the home care program, which was formerly a Ministry of Health program, the integrated homemaker program, the homemakers and nursing services program and the attendant care program. Again, I realize there was some confusion as to where these programs lay.

Of these four services, the attendant care program is the only one currently providing services defined as controlled acts in the proposed legislation through paid staff who are not usually members of the nursing profession. The other programs we have talked about are mainly related to and are mainly administered by professional health care workers.

Consequently, the impact of the introduction of the controlled acts on the attendant care programs and on disabled persons has been of concern to consumers, service providers and staff, both of the Ministry of Community and Social Services and the Ministry of Health. You certainly have heard presentations to that effect.

Since 1989 -- which is a direct answer to one of the questions -- there have been discussions between the Ministry of Health professional relations branch and MCSS's community health and support services staff involved in policy development for physically disabled persons, the Office for Disability Issues, organizations and members of the disabled community and, most recently, quite a number of the people who did make presentations here as well.

Based on the questions as raised in Hansard, I think what would be most important at this point is to clarify the role of the attendants and those procedures defined as controlled acts and to discuss a type of exemption under the Regulated Health Professions Act.

The attendant care programs were originally funded by the Ministry of Community and Social Services and now lie in the community health and support services division, which is a joint division under the Ministry of Health and Ministry of Community and Social Services.

Attendant care programs, as you are aware, have been operating successfully for years. You heard considerable testimony of the fact that individuals like these programs and that they have enabled a considerable degree of independence that was not obtainable before, without these services. Services are provided by trained attendants in designated apartment settings termed "support service projects" or in the disabled person's own home through the attendant care outreach program.

Again addressing a specific question, until such time as legislation is introduced or consolidated, the authority for these programs remains in the Ministry of Community and Social Services Act. I was part of a session where I heard that question raised: What is the authority for the attendant care programs? It is in the MCSS Act, which gives the minister very broad powers to develop programs in that area.

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The premier criteria for eligibility are that the applicant is 18 years old, the disability is permanent and there is a need for assistance with the activities of daily living. That is very important to stress, as we believe, as you have heard, again from disabled community groups and individuals, it is one of the key factors in looking at that.

We have defined activities of daily living as mobility, transferring, positioning, meal preparation, eating, cleaning up, dressing, undressing, going to bed, washing, grooming, shampooing and toileting, including bowel and bladder procedures -- which are really possibly controlled acts, and that is where we want to focus our attention.

In addition, again related to one of the presentations, over the past two years there has been much pressure to admit persons with severe respiratory conditions, sometimes with a tracheostomy, usually requiring mechanical ventilation on a part-time basis. We are certainly aware of the presentation made by groups, such as the Committee for Independence in Living and Breathing, which were here before you.

Three or four ventilator users have already been admitted to support service projects and several more are served through the outreach program. Consequently, tracheostomy suctioning, which is interpreted as another controlled act for a health care professional, is being performed by non-health professionals and has been for a period of time.

It should be noted, and this is the key point I would like to make, that all of these procedures, including those defined as controlled acts, are essential routines for daily living for the persons requiring them. That is the fundamental issue, as we see it.

I would like to conclude by saying that what we are attempting to do in terms of the redirection of long-term care is look at the continued and expanded use of non-health professionals in the community settings. This is not to say, however, that these individuals would not be trained, and that is where we intend to put a lot of our focus.

In an effort to accomplish that, we are suggesting at this time, although it is still a suggestion, that we look at a continuation of the program we have developed which is training attendants in skill procedures, so they can meet the requirements defined as controlled acts under the new Regulated Health Professions Act.

Currently, attendants' training is provided by in-service instruction and practice by an agreement with the local community college or by purchase of service from a nurse who is registered with the College of Nurses of Ontario. We intend to continue that. It is our suggestion to continue that, to make it more rigorous and to develop both generic training programs and specialized training programs.

Included in some of the generic training programs for in-home workers will be certain procedures which are defined as controlled acts. This would cover those individuals, such as seniors or the head-injured, who may or may not be able to self-direct their own care as well, but should have the same opportunity as other individuals to access services in their home and to access timely and, in most cases, non-health-professional services, which are much more readily available.

We are also talking about individualized training for those procedures that are considered more specialized, where individualized instruction and training are planned for these procedures. That would require professional instruction and, in some cases, a delegation of authority from a licensed health professional, who would basically ascertain that the training was of a sufficient standard and that the person was competent to deliver that service on a one-on-one basis.

Basically, if I may summarize, we are certainly interested in an amendment to the Regulated Health Professions Act, and there has been correspondence between the deputies of Health and MCSS to this effect. There has been correspondence by the previous minister responsible for disability issues to various advocacy groups and representative groups indicating that this is desirable, as well as the announcements by both the previous minister and the current minister when the legislation was tabled indicating that this was a desirable end.

By way of summary, what we are talking about is that persons or acts themselves should be exempted when the procedures defined are essential routine activities of daily living for the person requiring them, when the person performing these is a family member or when there is an agreement between that individual and the person providing the services; and in other cases, such as the case of children or those vulnerable individuals, where a regulated health professional has ensured that those services are of a certain calibre and standard and that person can perform those services.

Mr J. Wilson: In the area of title protection, with regard to the language in each of the bills that reads "titles are protected in the course of providing or offering to provide in Ontario health care to individuals," it has been suggested by a number of groups that perhaps that should be deleted. Because in the area, for example, of speech-language pathologists or audiologists, where they may do consulting in the education field or community and social services, the titles that are to be protected and some that may be introduced by amendment are only being protected in the health care field, and it would be better for consumers if they understood that a speech therapist was a speech therapist across the board, whether in a health care setting or at Comsoc or working for the government, as we have some on staff. Any comments from Comsoc on that? Did you look at that area?

Mr Wagner: Interestingly enough, it has not received the interest or the discussion that the area I just addressed did, the attendant care issue. Other than information provided as a courtesy, for instance, from the psychologists or the speech-language pathologists, etc, we have not been directly affected by that in terms of ministry policy work or lobbying activities. There has been very little in relation to that title protection area. It has not been a significant issue for us.

Mr J. Wilson: That is strange, because we have had about three or four major areas of concern from most groups, and one of them has been title protection, trying to get a feel from the government whether other ministries have objections in this area. I was under the assumption that perhaps other ministries did have objections, Comsoc being one of them, because for some reason this language was put into the act.

Mr Martin: In presenting a package of regulations such as this that comes out of one ministry but has tentacles that move into the realm of other ministries as the whole notion of health care evolves, particularly in the area of mental health and community mental health and community mental health programs, I would like to hear you share with us some of the direction in which the ministry is planning to go re the whole community mental health field and scene, whether there are any ramifications of this legislation that might cause you some concern, particularly in the area of the ability to diagnose, and going back to some of the title protection concerns that were raised around the issue of, for example, psychologists not having sole possession of the terms "psychological" and "psychology" re what mental health workers do in communities.

Ms Freiler: I think we will have to get back to you. We came prepared to answer specific questions and we would have had to bring other people with us to answer that.

Community mental health right now is in the joint division between the Ministry of Health and the Ministry of Community and Social Services, and the only contact we have had on the issue that relates to what you are raising is with the group that had concerns about the independent therapists. I cannot remember; I think they made a presentation to this committee.

Their concern was that they were excluded from this. They were also excluded from regulation because they were not doctorate psychologists. They raised a number of questions that they presented to a number of ministries, and I think they made a presentation here. I understand this is being resolved, but we will have to talk to people in the community mental health branch and get back.

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The Chair: Could I suggest that it might be appropriate for you to respond in writing or have the individual respond in writing to Mr Martin. Then, if he wishes, he can share that information with the standing committee.

Mr Martin: Just so you know and actually do your research or talk to your folks about this, some serious questions have been raised from people who would fall under, I would think, the mandate of your ministry more than the mandate of the Health ministry around the issue of the harm clause and the diagnosis clause and their ability to do their work in the community.

Because, as I sense, the Ministry of Community and Social Services moved to have communities heal themselves and be creative in the way in which they might respond to mental health needs and how even education might get into the act in terms of delivery of service and all that, there are folks out there who are doing work now in the mental health field particularly who are concerned that this might put them in jeopardy as they continue to do that.

Yesterday, as I talked to Mr Schwartz, I shared with him an example -- I was involved in a lot of community work over the years. It became common knowledge that people who took, for example, teams of young people on trips got into accidents, whether big or small, and were sued; some of them got into lawsuits that cost them their livelihood. They more and more backed off doing those things that we all took for granted as a good thing to do and good for community mental health and that kind of thing. I am afraid that with some of the legislation we are looking at bringing in here, we might have the same kind of impact, that people might back off and say, "I'm not going to be involved in that any more." I think you take away a valuable resource from a community as it tries to deal with some of the problems it confronts.

I will be interested in Comsoc's response to that on whether there will be an impact.

Mr Jackson: My area of concern has to do with how well this legislation anticipates some of the changing needs within the ministry as it relates to long-term care reform. In particular, I would like you to talk in more detail on the items you referenced earlier about the responsibilities of family members who are providing care of a routine nature versus providing care that in another setting clearly is regulated and requires the supervision of another professional.

I know I am asking you to look into the future, but there are sufficient pilot models for community-based health care now where this situation would emerge. I am anxious to determine if the ministry has analysed that and can guide this committee to ensure that the legislation before us is sensitive to that changing direction in which we are going to evolve in the coming decade.

Mr Wagner: It is a very difficult question to respond to, because of course things have changed so much in terms of the interface between health and social services. Things will continue to change, and the impact of the medical technology is of such significance in what we are talking about that it really does directly impact.

We do believe overall that the proposed legislation, as we understand it, will have a positive effect in the areas you are talking about, provided some exemptions are obtained, for instance, for family members and other non-health professionals, particularly in the areas you are talking about, which I was alluding to and also have some experience in, mainly those individuals with those kinds of conditions which were not even around 5 to 10 years ago. For instance, ventilator-dependent individuals were not around in a formal setting; they have been around for many years in terms of, for instance, polio survivors on respirators for many years in the community and there was no attention or no interest paid because they were coping as best they could with family members.

However, we are talking about new phenomena largely related to the impact of trauma units and the ability of health systems to save individual lives with the possibility of very sophisticated mechanical and other supports. I really think that is the area; also, chronic care situations that require immense amounts of support and help.

At this time, we do not know the extent to which we can respond. We are certainly trying. There are pilots, as you suggested, relating to the care of individuals both by family members and supported through health professionals and non-health professionals. What our experience has been, and I think you have heard this from the presentations so far, is that most parents and most individuals can do the sophisticated procedures provided they are trained.

Mr Jackson: Let me lay out for you the specific concern I have. In this world of eternal optimism one would hope that all experiences for a patient in a home setting are wonderful, are supportive and done to a professional level. However, if one were to cite the cases of elder abuse, of certain forms of family abuse which the system does not necessarily check, it puts a great onus on this committee and the work before it in areas where we are taking someone out of a hospital setting, where this legislation clearly defines the professional conduct, and putting them into a home setting.

I am not going to disagree with you that our capacity to move to a home setting is enhanced greatly. However, if a senior citizen in my riding is in a hospital for dialysis, he will have the direct supervision of a doctor, and a nurse with urology experience will be doing the hookup and the disconnect and will be doing some monitoring. When we move that to a home setting, we now have a very confused set of liabilities that flow between the family and the nurse because some of the training is done by the nurse to the family member. We drop, in a sense, the legalities and the supervision of the physician in the urology department.

That is of concern to me and to seniors in this province, and I am trying to determine the extent in which ministry thinking, legal or otherwise, has evolved to look at that issue. Certainly that situation is occurring now, and the legislation we are about to implement will impact on that environment.

I am looking at the downside, which unfortunately, statistically, we are finding out is much higher than we had anticipated in this province. Can you address that: As opposed to knowing that we are going to do it because we are able to do it, that we are going to do it because we have to?

Mr Wagner: At this time our analysis, including a recent study we have done on high-care needs of individuals, has not shown that. Neither has some of the material we have from other jurisdictions. What it has shown, in fact, is that with care in the home, the number of hours and the kind of care and the risk of infection, by and large, are less than in the hospital setting. So our community data do not support that necessarily. The issue you raise is certainly well founded: the issue of liability and that delegate --

Mr Jackson: Supervision of professional medical services, which is what we are here to deal with in this legislation.

Mr Wagner: And also, on the upside of that, the notion of having professional standards, having standards that are applicable to the home community, which we support. We are saying there have to be standards. There should be, besides this legislation, different ways of enforcing those standards, rather than relying on this legislation to do that. This would allow us the flexibility to use non-health professionals in this kind of setting.

Mr Jackson: Madam Chair, if I could simply ask a one-line question, because I sense I am not getting far with this question --

The Chair: You are just not agreeing with the hypothesis, Mr Jackson.

Mr Jackson: I was not laying out a hypothesis. I was simply asking if the ministry has examined the issues as they relate to home-based home care, where family members are now involved in not necessarily simple, routine procedures but complex medical procedures, and who is responsible for supervision. I simply ask the question this way: Does this legislation, in your opinion, deal at all with home care programs in this province that are run through your ministry? If so, how does this legislation impact that directly?

Mr Wagner: It impacts it both directly and indirectly. I refer you again to a study we have just completed, The High Care Needs of Individuals, which is certainly available through our office and which I think will answer some of those detailed questions in terms of what data we have. In terms of home care programs and those other programs I mentioned, that package of programs which we are trying to rationalize, it will provide standards for health professionals and non-health professionals. That is the intention. Hopefully, in those areas you are speaking about, in those areas where there is some question and some risk, significant risk, there will be a mechanism worked out through the colleges that will permit transfer of responsibility without necessarily relinquishing authority, which is what I think you are getting at.

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Mr Jackson: So the legislation is silent on it at this moment, but you are doing work on it.

Mr Wagner: We are anticipating further discussions. Depending on the nature of the exemptions, we are anticipating discussions with the colleges and we are working with them.

Mr Jackson: With the individual colleges?

Mr Wagner: That is right.

Mr Jackson: The ministry has given you a mechanism and a plan for discussions for that, and you are actively reviewing this legislation with a view to looking at community-based and home care types of programs on the critical issues of professional, medical, support services and the supervision thereof?

Mr Wagner: We have been doing that since we were made aware of the potential impact of the legislation when it was tabled.

Mr Jackson: That was some years ago, yet you have not provided any concrete proposals, or you are not impacting this legislation.

Mr Wagner: Partially, that is because we are also talking about the reorientation of long-term care, which is still in its infancy.

Mr Jackson: Okay, I think we have enough.

Mr Sola: I have subbed on to this committee several times. A social worker made a statement I found disturbing, that 80% of the mental health cases that came before him were misdiagnosed. The question period was a little short, but I got the impression that it was not a slur on the capability of the medical personnel who had diagnosed these people. It was just, I think, a question of how comfortable the clientele felt in a medical environment; they maybe let their hair down more when they were being interviewed by a social worker. I am wondering whether you find this 80% misdiagnosis to be province-wide or whether this was a particular case for the Sault area. Could you comment on that, please?

Ms Freiler: Neither of us have ever heard that statistic. I would like some clarification. Is this misdiagnosis by a social worker?

Mr Sola: No, the social worker claimed that mental heath patients referred to him had been misdiagnosed by the medical people who had done the diagnosis. I was disturbed by this, but I do not think this was a slur on the capability of the psychiatrists or psychologists who interviewed the person, but just that, I guess, they were looking for something other than what a social worker looks for. Also, I think the clientele felt more comfortable talking to a social worker than to a psychologist or a psychiatrist. I am wondering whether this is a province-wide phenomenon or just maybe the case in the Sault area.

Ms Freiler: I think you are asking a question that is too important for us to try to wing it. Neither of us knows, but we will certainly find out in the next couple of days and get back to you in writing by the end of the week.

Mr Hope: I was listening to what you were saying. I listened to Alan Schwartz yesterday talking about how the system would have to be flexible. Listening to your answer to Mr Jackson's questions, are you saying that because we identify certain needs as the system goes on, as we start talking about care provided in the home instead of institutional settings we are going have to be flexible in order to accommodate, making sure that high quality is there? I have to ask you that. Along with that, do you see an ongoing rapport with the health professions working with the college -- you made reference to head injuries -- as we start the dialogue around the criteria? As you talked about criteria for special people, I just wonder about your comments on that.

Mr Wagner: I think we must show flexibility, because we are faced with areas where we had no sense, as I said, 5 to 10 years ago that people would even be surviving certain kinds of traumas or chronic conditions. I am sure the committee members are familiar with the kinds of conditions; I am sure you have had presentations on these. What we have to do, and I think what you are alluding to, is that we must maintain the flexibility so that people have the dignity of risk. They have already demonstrated they can survive the trauma or the disabling condition. We have to, to the extent we can, enable them to go about their lives in the community. We cannot restrict them to a medical model that would in fact force them to remain in a hospital setting. Again, I know you have had a presentation to this effect.

The way we do that is most difficult, I agree. I think it was what Mr Jackson was referring to. I think we have to use non-health professionals. They are available. We can do more with the number of people. In fact, they provide the flexibility we cannot find, because we cannot even access those numbers of health professionals even if we wanted to.

On the flip side of that, your reference to the head injury is a good example. In that area, there are very few standards or criteria right now in Ontario; there are very few anywhere, for that matter. I think we are looking to this type of regulation and this type of the development standards to help regulate that area.

Looking south of the border, we have seen extensive development of services, in some cases by questionable individuals, because of the lack of standards. We are suggesting that something like the legislation proposed could assist in establishing those standards -- in effect, the issue of credibility and credentials -- and then allow us to have the flexibility with the colleges to say: "Fine, we understand that. We can meet those standards, but will you permit us to go further and allow those individuals who want to go back into the community the risk, the opportunity to try to live, knowing that mistakes will be made?" Certainly the liability issues are real. They are real right now. If an individual performs a procedure, he may be liable for it now, just as he would be liable later when it is a question of competency.

Mr Hope: The second question goes to a slightly different focus, dealing with the proposal that was made to us with new language that was developed. I know you have been out of the office for a bit. Have you had an opportunity to sit around and discuss the language that has been proposed to this committee? If so, is it workable for the health professions regulations?

Mr Wagner: As I understand the last proposal, which came while I was on holiday, I think it does meet the needs of our ministry as well. Whether it be by amendment or regulation, it does provide a framework for activities of daily living to be exempt. That gives us the flexibility. For those kinds of individuals we were talking about who are in very risky situations, who are willing to take that risk, then I think we are talking about that model where there could be some regulation applied saying there must be delegation or supervision by health professionals.

The Chair: With the permission of the committee, I would like to ask questions along these lines as well. Any objection?

Mr Jackson: Who gets to cut you off?

The Chair: Not you.

Mr Jackson: I was looking for the job.

The Chair: I will not be too lengthy. I will try to keep it within the same time line as others.

We have discussed this issue before. The opportunity for individuals who are now able to live independently in the community and to make their own decisions around risk is seen as a quality-of-life issue. The dignity of risk is one which has been made very dramatically before this committee. We have all been looking for ways not only to encourage and support that independence but also to respond to the desire of those individuals for what they were very clear and very articulate about, which was control over their own lives, making informed decisions. I do not think there is a group of individuals that has the opportunity to make more informed choices than in fact those people who are dependent on the kind of support and care which is now available because of new technologies.

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With that as an introduction, a thought occurred to me. I wonder if it has been considered. If it has, that is fine. If it has not, I would like to ask that it be considered as part of the policy development process as well as the amendment that has been placed, which everyone seems to feel will accommodate the desire for now, under the rubric of flexibility you referred to and the need to respond to both standards as well as the issues of liability and ensuring proper informed consent.

Your ministry has had some experience with the concept of contracting out of legislation. We discussed that yesterday with the folks from the native affairs secretariat around the Child and Family Services Act, where contracts are actually able to be developed between highly informed organizations or individuals. It seems to me that concept may have some real opportunity for this legislation, not only for the native communities but for disabled persons who, when properly informed, could establish the kind of contract upon leaving hospital that would give them complete control over their own lives and allow them to see that the individuals providing service were properly trained to a certain standard. Have you considered the concept of contracting out for disabled persons in the context of this legislation?

Mr Wagner: In the context of the legislation?

The Chair: In other words, an amendment that would permit disabled persons to enter into a contract with a provider that would save harmless the individual from liability under the legislation, give the disabled person complete control over the hiring, education and so forth and take the provider out of the influence, if you will, of anyone other than the disabled person with whom he has entered into employment. It is an idea. I am wondering whether it has been considered, and if it has not, whether you are willing to consider it.

Mr Wagner: I think we have attempted to practise it, in part, through our transfer payment programs to agencies, in fact to volunteer agencies which provide attendant care.

The Chair: At the present time, though, there is nothing in this legislation that would allow anyone to contract out of it.

Mr Wagner: I see what you are saying. In the actual context of the legislation, we have not discussed it in great detail except for the concept of delegation of authority to non-health professionals, which presumably could be contracting it. We have talked about pilot initiatives in terms of direct funding. We have talked about agencies continuing to provide the service to the individual and the individual making contractual arrangements with that agency for individualized service, which is the beginning of the model. Where we are experiencing difficulty, as I alluded to and as the questioning did, is around those high-risk individuals and ensuring we have access to health professionals. Ventilator-dependent individuals and advanced muscular dystrophy patients are examples where the continuum is so blurred that we must have access. For that individual to continue to live in the community, he or she must have access to health professionals to establish that continuum.

The Chair: It was just an idea that occurred to me when we were hearing from some of the groups and organizations. I realize an accommodation has come forward with the proposed amendment to the statute, but I wanted to raise the question and ask that you consider that in terms of the policy developments that are ongoing. That was the context of my question.

Mr Jackson: Madam Chair, to the excellent point you have raised, just for the interest of the committee, the Ministry of Community and Social Services conducted a workshop all day Saturday with health care professionals and community agencies to deal with the issue you just raised. I sense that because of the deputant's comments that long-term reform is in its infancy and because this legislation is clearly before us, that means we are unable to merge the two, but it does not imply that the government is not undertaking discussions on this subject at this time. I have been briefed on a meeting that occurred as recently as last Saturday that dealt with this specific issue in part.

Ms Freiler: I believe that was not our workshop.

Mr Jackson: It might have been the Ministry of Health, but it was around long-term care. They were facing the various professional groups that were in the non-profit and the for-profit sectors, and this delegation of authority was clearly discussed, from what I was told.

The Acting Chair (Mr Cleary): I thank you for your presentation. It was very informative.

WORKERS' COMPENSATION BOARD

The Acting Chair: Next we have the Workers' Compensation Board, Tinie Van Schoor. Do you have some opening remarks you would like to make?

Dr Van Schoor: I have a few remarks I could make in terms of the impact on the Workers' Compensation Board and the legislation as it affects the chiropractic profession. Our concerns centre around a few points, and I would be happy to respond to some questions.

In the first instance, our legislation is clear that the injured worker is to make the initial choice of doctor or other qualified practitioner for the purposes of the Workers' Compensation Act. In that regard, we have traditionally recognized both medical doctors and chiropractic practitioners as being entitled to provide primary care under the legislation. We would be concerned if anything changed in terms of the status of the scope in which chiropractics were able to provide primary care.

This perhaps centres on some of the language distinguishing between diagnosis and assessment for spinal versus other joint conditions. I had some discussion earlier this morning and it would seem as though that distinction is not going to be critical in terms of allowing the chiropractic to treat these conditions. The bulk of the conditions affecting injured workers treated by chiropractics is related to the spine, although we have clearly 5% of cases that involve joints of the extremities. We have some difficulty with our classification system, and we have another 23% of cases where it is not clear whether it is a combination of spine and extremity injuries. I just cannot pull that out of our data. So that is one issue.

The other side of it is that when we are adjudicating entitlement to benefits under the Workers' Compensation Act, we try to relate the diagnosis of the injured worker's condition, whether it be an injury or a disease, to the work circumstances. We have traditionally asked chiropractors to provide us with a diagnosis in order that our adjudicators can compare the diagnosis with the work circumstances and make a determination of work relatedness. Again, if there is a removal of the ability of the chiropractor to make a diagnosis, this could to some extent encumber the situation, although I would say a lot of it focuses around the definition of "assessment" versus "diagnosis."

Those are the issues that seem to be of concern to the compensation board. I would be happy to answer any questions.

Mr J. Wilson: Just to be clear on that, the current practice is that the Workers' Compensation Board does rely upon chiropractors to make diagnoses of the extremities?

Dr Van Schoor: Yes.

Mr J. Wilson: It is your view that this legislation may inhibit that practice by chiropractors?

Dr Van Schoor: Yes, depending on the definition of "assessment" versus "treatment." My understanding is that this would not exclude injured workers from going to a chiropractor, being assessed and treated, in that there is not a prescription needed at the front end before allowing them the choice of chiropractor. I would like to hear whether that is correct.

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Mr J. Wilson: In the Workers' Compensation Board use of the term "diagnosis," are you using the term in the same context that the College of Physicians and Surgeons of Ontario would use it, and certainly the context in which we have been asked to consider it? That is, you are asking chiropractors to explain the root cause of an ailment. Is that your understanding of the term?

Dr Van Schoor: Yes, especially for the purpose of establishing work relatedness. We require that kind of definition because the cause needs to be determined as to whether or not it is work-related. If you do not have the cause, obviously that task becomes difficult.

Mr Martin: In the light of some of the overlying principles of this legislation, one of them being that the public should be provided with a variety of choice in terms of how they want to be looked after when they have been hurt or when they are sick, do you see this legislation, in terms of your service, actually doing that? We have had folks come forward excited about the possibility of getting some further recognition of what they do and some legitimacy given to their method of health service. Will this enhance and provide those people out there in our communities the opportunity to take advantage of health care that they see as the most appropriate for them?

Dr Van Schoor: My understanding is that this is the intent of the legislation. Of course, as with all these things, we are concerned with both flexibility and access as well as high quality of care. In that regard, we follow very much other existing pieces of legislation. I do not think the Workers' Compensation Board in and of itself really has or should have a role in determining which practitioners can practise what type of health care. We are inclined to follow on the definitions flowing from the Health Disciplines Act, from what the Ministry of Health determines, etc. We hope and trust that whatever is built in there addresses accessibility, cost-effectiveness and quality.

We have a separate responsibility to monitor the health care that injured workers receive and ensure that this is of the highest quality. Where there are unique services required by injured workers that might not be required to the same extent by the general population, we look at trying to facilitate and encourage the development of such additional services.

So I think we have a concern in terms of access and quality, but at the same time we see ourselves in a secondary role to the major agencies that regulate the health care professions. We sort of follow on from them. Our legislation defines health care in terms of medical, surgical, optometrical and dental, and then the whole group of drugless practitioners. My understanding is that this will widen the choice for an injured worker among the group of drugless practitioners, who can then provide primary care without having to first go through a medical person.

Mr Martin: I guess what I wanted to hear clearly from you -- because you do pay the bills, and the person who pays the bills in this society usually calls the shots -- is who you will recognize as a bona fide, legitimate health service deliverer. And, in light of the intent of this bill, which is to provide a range of choice to the consumer, will this legislation do that? I need to know that as I give my assent through this process, because we have had some letters presented to this group that have shown that the compensation board does in fact decide who can and cannot deliver service to the people it serves.

Dr Van Schoor: Certainly on an individual case we will evaluate the treatment a specific injured worker is receiving and see whether that particular treatment is appropriate at this time, relative to a type of injury. But in the broader context, as I said, we do not see ourselves being in the role of determining who can practise what type of health care, and we rely on other pieces of legislation to guide us. So in general terms, we follow the legislation that is out there, and if that changes, our practices will change.

On the individual case, each case is examined on its own merits. We have to deal with whether this particular practitioner is providing appropriate care to this particular worker. That is where there would be a specific power exerted by the board in terms of payment or non-payment for a treatment. But in the broad context as to who the injured worker has access to, we rely on other legislation. We have in the past followed it, and we would hope to continue doing so, unless there were some extreme reason for us to deviate from that. As I said, we are not in the primary business of regulating health care professionals in the province. We need to rely on other bodies to do that.

Mr Martin: For many of us who serve in our constituencies, workers' compensation has to be the most frustrating, difficult thing we deal with in our day-to-day efforts to be of service to our communities. A lot of times it is because there are not clear definitions about what you can and cannot do and who gets what.

I was hoping that any legislation we would pass in our mandate would in some way assist folks out there to access services in a more direct and clear fashion. Maybe you are not able to tell me that, but will this legislation take away any of the grey area and lay out clearly what it is people can access and what they cannot?

Dr Van Schoor: As I said, in general terms, yes. In specific instances, I think this is where you meet some of your frustration. It is often not even so much whether the individual has access; we simply do not have the authority to pay the bill if a decision has not been made that the individual has access to benefits under the act. This is often the area of frustration: that the treatment might be appropriate, the patient has access, but the decision has not yet been clearly made as to whether the responsibility for payment lies with the Workers' Compensation Board or with the individual or with the health insurance plan. I think this is where most of the frustration comes. Sometimes these entitlement decisions are time-consuming and complex. That part of the frustration obviously would not be affected by this legislation. But in terms of general access for injured workers to a broader choice of health care providers, yes, it will do that.

Ms Haeck: I would like to follow up on some questions that Mr Wilson started to pose, and Mr Martin as well. The issue of diagnosis and assessment -- disease, disorder, dysfunction -- is one that obviously has been very much integral to this whole set of hearings. In the process of examining the diagnosis or assessment a chiropractor may make, what would be part of the documentation to review as to where a particular claim stands? I am looking at what kind of diagnostic tools or whatever you would expect a chiropractor to deliver to WCB in order to make a decision about a claim. What is the decision-making process?

Dr Van Schoor: In terms of the entitlement, what we are looking for is identifying the cause of a disabling condition.

Ms Haeck: Would that mean you would expect a series of X-rays to be included with this, or what else may or may not be involved?

Dr Van Schoor: It would depend on the individual case, but a range of things would be required, from your history, your physical examination, special investigation such as X-rays, all the way through the range to invasive tests. In the case of the knee, an arthroscopy might be required, access to CAT scans, magnetic resonance imager scans, blood tests, etc; all may be necessary depending on the individual case.

Ms Haeck: In that example, there is a limitation as to what a chiropractor is allowed to use as a diagnostic tool, so a chiropractor may not in fact have access to prescribing an MRI scan. That is my understanding. Is that yours as well?

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Dr Van Schoor: Yes.

Ms Haeck: You made the comment about an invasive procedure. It is also my understanding that they are not really involved in an invasive procedure. That is much more an external examination.

Dr Van Schoor: The only thing is that these investigations obviously are not necessary in all instances. I have some difficulty in understanding the distinction between the spine and the extremities. The current practice is that if the chiropractor suspects something which requires more investigative procedures than he has access to, he then refers to a medical doctor and the process flows from there.

I find it, from a medical point of view, difficult to understand the distinction, because in many instances the diagnosis of joint disorders of the extremities is a little easier and more readily done than in the spine. That seemed a little curious to us: Why make the distinction between spinal and other joints? But in practice, the process seems to work well except for the exceptional cases. Chiropractic professionals generally identify problems that they can deal with. They deal with them appropriately, and if they feel it is something outside their field that requires additional investigation, they very appropriately refer it to the medical profession. That has not been a problem for us from the workers' compensation point of view.

Ms Haeck: Definitely. We understand that professional arrangement is working well; I am not here to debate whether they have been doing that or not. But it has been a concern throughout these hearings about trying to determine what is a diagnosis and what is an assessment. The semantics of it has been a major issue for virtually every group that has come before us.

Dr Van Schoor: Even with the medical profession, when we feel there is insufficient data for us to make a work-relatedness decision, we will then ask for that physician or a consultant to become involved. We will often request that specific tests be done to assist us in establishing the causation issue in the case. Asthma is an example where, in the general management of an asthma case, the physician very often does not do the extensive tests that are required by the compensation board in order to make a work-relatedness decision, because the physician is basically interested in treating the condition, and whether it is due to pollen at home or some dust at work is not of major consequence to that physician. Of course it is to the board, and we will then request these special tests to be done to assist us in performing that function. That would continue unchanged. We would judge when we feel we require additional testing for decision-making purposes.

Mr Jackson: I would like to thank you, Dr Van Schoor, for your very clear and unequivocal presentation on the issue which this committee has been struggling with. Most of the questions I had have been asked. However, Mr Martin did say you pay the bills and therefore you should call the shots; I always thought WCB was built on employer contributions in large measure, but that you still have the right to call all the shots. I just thought I would correct that little piece for the record.

Mr Hope: They are the gatekeeper.

Mr Jackson: That is true. They are the gatekeeper, and perhaps when we are $6 billion in deficit position, or whatever they are at the WCB these days -- I do not indict Dr Van Schoor with that, of course. He is providing a very valuable service.

However, I am interested in the specific requirements of WCB in terms of getting the various checks and subsequent rechecks by physicians and/or chiropractors. Am I to understand that under certain circumstances you are more than satisfied if there has only been a diagnosis done by a chiropractor and there seems to be remediation and rehabilitation occurring? Does that seem to satisfy WCB? Or do you still require an external doctor's diagnosis before you will process the claim in a certain fashion?

Dr Van Schoor: I would say in the vast majority of cases where the injured worker selects the chiropractor to provide the treatment, the information provided by that chiropractor is sufficient for our purposes of adjudicating the claim. It is the exception where additional information or additional assessment by physicians is requested.

Mr Jackson: My second question would have to do with your perception. Could you share with the committee whether, in your opinion, the change which inhibits the diagnosis of the outer extremities may cause an increased cost to the system, whether it be OHIP or WCB, by in some cases requiring additional diagnosis that may or may not have been necessary?

Dr Van Schoor: I think that would depend very much on the definition of "assessment" versus "diagnosis." On the report forms which we request the chiropractors to complete and send to us, we ask for a diagnosis. If the legislation goes through as it stands now, we may well have to develop an additional form to deal with assessment rather than diagnosis for the extremities. Whether that will then lead to the need for additional medical diagnoses to satisfy our needs, I am not sure. In practice, I think probably not, but in terms of the language on the forms, it would not be proper for us to ask for a diagnosis on an extremity case if the legislation goes through as it stands.

Mr Wessenger: I would like to ask you a question with respect to the joints of extremities. You indicated that 5% of chiropractors' cases deal specifically with treatment for joints of extremities. I would be more interested in knowing what percentage of injuries to joints of extremities is dealt with by chiropractors versus the medical profession. Do you have any information on that?

Dr Van Schoor: I do not have the exact number here on total numbers of cases treated by chiropractors versus physicians, but I think it is somewhere in the neighbourhood of between 10% and 20% of all work injuries treated by chiropractors.

Mr Wessenger: That would be overall, but generally, do you find more --

Dr Van Schoor: As to the overall incidence of extremity problems versus back problems, back problems contribute about 28% of our cases, both upper and lower extremity each a little less than 25%, at the time of injury. The distribution is fairly equal between back and upper and lower extremities.

Mr Wessenger: Obviously, physicians would have much more dealing with treatment of extremities.

Dr Van Schoor: Extremities, yes.

The Acting Chair: Thank you very much for your presentation.

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MINISTRY OF EDUCATION

The Acting Chair: Now we will move on to the Ministry of Education; we have Julie Lindhout and Deborah Goldberg. Welcome, and I guess we are all set for a few words.

Mrs Lindhout: I am Julie Lindhout, director of the legislation branch of the Ministry of Education. I would like to thank the committee for inviting the Ministry of Education to come before the committee to present our concerns regarding Bill 43. I can do so quite briefly.

The objective of the Ministry of Education is to help individual learners to achieve their potential regardless of their intellectual, physical or emotional situation, in a setting that is best suited to their particular needs, and to prepare them to participate in society to the greatest extent possible.

The ministry has a policy of promoting early and ongoing identification of children's learning needs. Each school board is required to have approved and in operation, as of September 1981, procedures to identify each child's level of development, learning abilities and needs and to ensure that educational programs are designed to accommodate these needs and to facilitate each child's growth and development.

These procedures are part of a continuous assessment and program planning process which should be initiated when a child is first enrolled in school, or no later than the beginning of a program of studies immediately following kindergarten, and should continue throughout a child's school life. As a result of this policy, a broad range of professionals now works with students, and the progress of all students is carefully monitored.

When special assistance or remedial measures are necessary, they should be identified and provided at the earliest opportunity, preferably in an informal, unobtrusive, easily accessible manner by people who are familiar to students in the educational environment.

Students often feel more comfortable if the assessment or counselling is done by teachers, guidance counsellors, or other board staff who are not health professionals regulated under Bill 43. They are more likely to bring their needs to the attention of people with whom they are in regular contact and who can assess their needs and recommend strategies with the least delay or interruption of the education program.

In some circumstances, students are more inclined to discuss problems with clergy, native counsellors, attendance counsellors and others who visit schools on a regular basis. There may be situations where students and their parents are reluctant to seek professional help but may be persuaded to do so after assessment by, and upon the recommendation of, a teacher or guidance counsellor with whom they feel comfortable.

There may also be situations where professional assistance is not accessible, and the alternative would be no remediation for lack of assessment, or assessment delayed beyond the ability to provide timely remediation. This might occur in remote locations or in inner cities where the parents do not speak English or French. In either of these possible scenarios, the school is the students' main point of contact, and it might be the most appropriate provider of assistance, at least in the first instance, where identification of the existence of a problem is critical.

We are concerned that clause 26(2)1 may have a detrimental effect on the ability of the school system to meet its overall goal of providing an appropriate education to all students, and may inhibit the ability of teachers and other professionals to perform their responsibilities.

Our position was outlined in the letter from our deputy minister, Robert Mitton, which was already brought to the attention of this committee. We note that the basket clause referred to in that letter has been dropped. Our concern with the definition of "diagnosis" remains. It could, however, be alleviated if the act were amended to clearly restrict the prohibited activity to physicians and certain other medical care givers.

Any such amendment should make it clear that the act does not restrict the activities of educators and others who deal with children in a school setting, in a counselling relationship, whether formal or informal. In this way, the overall objective for education can continue to be met.

Our original position, as expressed in the letter from the deputy minister, was that our concern might best be addressed with the regulation exempting education professionals from this act. However, following discussions with Ministry of Health staff, we now believe that an appropriate amendment to the definition of "diagnosis" will alleviate our concerns, and we would be pleased to consult with Ministry of Health staff on this issue.

I would also like to point out very briefly that following the introduction of Bill 82 in 1980, the special education legislation which brought a large number of students with ongoing need for health support services into the regular school system, the ministries of Education, Health, and Community and Social Services jointly agreed on the provision of health support services in school settings. As a result, responsibility for the direct provision of these services at the local level is shared by the school boards, the home care program of the Ministry of Health, and the agencies operating under the Ministry of Community and Social Services.

Specifically, the school boards are responsible for the administration of oral medication, where such medication has been prescribed for use during school hours. For physically disabled pupils, the school boards are to provide such services as lifting and positioning, assistance with mobility, feeding, toileting and general maintenance exercises.

Boards also continue to be responsible for necessary speech remediation, correction and rehabilitation programs.

Paragraphs 26(2)5, 6 and 8 may have implications for this agreement. Our ministry would be pleased to work with the other two ministries to analyse these implications. Thank you again for providing us with this opportunity to express our concerns.

Mr Jackson: I appreciate the presentation and that active discussions are under way, but I am trying to sense -- I will ask the parliamentary assistant and/or legal counsel. Can you advise the committee if amendments have been drafted in accordance with the discussions that have just been set out, or are we still discussing what the nature of those amendments are?

Mr Wessenger: I will say that there will be certain amendments coming forth, but they are not yet drafted. The committee will have to assess those as they come forward.

Mr Jackson: Given that you have entered into discussions, can you at least share with the committee what the nature of those amendments is and the current thinking?

Mr Wessenger: I think it is quite clear that the position of the ministry has always been that the matter of assessment and communication of assessment has not been included as a controlled act under the legislation. I do not think the amendments were particularly necessary to set that out, but I think it would clarify it.

Mr Jackson: I appreciate your opinion, but we are talking about substantive legal matters dealing with schools. I recognize that you can do all the assessment you want with a child, but as soon as you put in his OSR that you have modified his program, you have gone through the process of diagnosis under the law and are now implementing a change in the child's program. All of this is done in our schools routinely. So you may not say that there was a diagnosis, but you cannot have an assessment and then move to a treatment in a classroom setting, or any behaviour modification, without having gone through the three steps.

So if I might ask legal counsel -- not the opinion of the parliamentary assistant -- what is the level of discussion on amendments to address the points that have been raised not only by the deputy minister and the teachers' federations, but now still ongoing concerns that have been shared with this committee by the deputants from the ministry who are before us?

Mr Wessenger: The only thing I can reiterate is that our position is different. In our opinion, we say the Ministry of Education is wrong in its opinion with respect to the legislation. But I will ask counsel to reply to that as well.

Ms Bohnen: I think we are talking about several different things, and I would like to address them separately. First of all, with respect to the agreements the Ministry of Education has entered into with Health and Community and Social Services, I believe, concerning the provision of some health services to disabled students, I would like to remind you that there have been government commitments to an exception for assistance with what we call routines of daily living, including things like toileting, administration of medication by injection and so forth, and that exception would apply to wherever the service was provided, whether it is in the workplace, in the school, in the home. The only issue I think outstanding with respect to that whole matter is where the exception should appear, in the statute or in the regulation. I believe the concern expressed about those kinds of services specifically has been met, and if that has not been fully communicated to the Ministry of Education, I think we regret that and will be happy to elaborate on it with the Ministry of Education.

Second, with respect to the issue of diagnosis-assessment, I would like to refer you to Deputy Minister Barkin's response to Deputy Minister Mitton wherein he explained his view of why the specific controlled act concerning the conclusions identifying diseases, disorders and dysfunctions would not in any way hamper relationships and communications between education professionals and students.

I would also like to remind you that the minister said, when she came before this committee on the first day, that she hoped to be guided by the committee in terms of amendments to that controlled act. She tried to give greater comfort to the Ministry of Education and to others that this is what we are controlling, not that.

I do not think you can jump to the conclusion that because a notation is made in the school record and a course of action noted there vis-à-vis that student, there has been a clinical diagnosis of a disease or a disorder. I think they are talking about quite different things. I mean, the school record is not going to communicate to the student the fact that the student suffers from a disease. It may note that the student has a disease, but that is certainly not going to be the first communication to the student that he has a particular disease. Surely the plan within the school for assisting the student focuses on things quite different from, "What disease or disorder does this student have?"

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Mr Jackson: We are talking about neurological dysfunction in many cases here, not diseases. Diseases are the easy ones to deal with. It is the neurological dysfunction which manifests itself in difficulties in the school setting. These can be complex and these are routinely assessed and routinely treated.

If your position is that there is no diagnosis, then I submit that children are at high risk. What we are hearing from the professionals in the classroom and through school boards is that they are diagnosing to a degree and that they are implementing program modifications.

But the committee gets a clear sense of the position of legal counsel and the government in this matter. I am distressed to hear that you will be dealing with these matters, to the extent that you are prepared to deal with them, in the context of regulations and not within the legislation.

Ms Bohnen: I did not say that.

Mr Jackson: I do not think it is as simple as disease. I think we are dealing with very complex neurological matters.

Ms Bohnen: To the extent that we are dealing with very complex neurological matters, then I suggest to you that the appropriate diagnostician of those matters is a psychologist or a physician. However, if we are talking about the fact that a student has an assessed difficulty in speech requiring certain remediation, then nothing in this legislation of the government inhibits that from taking place, whether it be by a speech-language pathologist or any other personnel the school boards employ for that purpose.

Mr Jackson: Not to prolong this, my final comment is that if we are wrong and if you are wrong in your assumptions, then the effect will be that less assessment will be going on because of the limited access to the kinds of professionals we now know will be required under the legislation. The school boards do not have these kinds of resources and access points in place, yet they are responding to need in the best way they can. If this all has to do with "harmless" and responsibilities as the legislation sets it out, I am still not satisfied, as I am sure the teachers' federations are not, that those matters are being adequately addressed. That was my final say on the matter. We will revisit this during the amendment process.

The Chair: Question, Mr Bradley.

Mr Bradley: Not being a regular member of this committee --

The Chair: You are a welcome addition to it. I know all members are happy to have you.

Mr Hope: Not all of us.

The Chair: We have a dissent on the comment of the Chair, so Hansard will duly note it and we will continue with the question.

Mr Bradley: You always preamble when you know your question has probably been asked by five other people at some other time who have a detailed knowledge of the bill, but it is a general question; Mr Jackson has made a reference to it. What specific liability is faced by members of the teaching profession who are performing semi-medical duties? The bill obviously is going to define what is a medical responsibility or a medical act and one which is not. I do not know where toileting fits in. I am not trying to be funny, but I do not know where it fits in, for instance. What kind of liability do members of the teaching profession face at the present time?

Ms Goldberg: Do you mean if this legislation is passed?

Mr Bradley: Before the legislation comes into effect, what kind of liability do teachers face who perform certain of these duties at the present time, which they do?

Ms Goldberg: Presumably, as long as they perform them correctly, there is no liability. If there were an accident of some sort, then presumably it would be a civil suit that could be launched by the family of a child who was injured. But I presume that as long as the procedures are administered properly, then no liability ensues.

Mr Bradley: And if there were a suit, it has to be determined by a court whether the procedure was properly performed. Of course, the teachers then would have two concerns: one, that they would be performing any duty of this nature in the first place; second would be that if they are performing it they have adequate information and training as to how to specifically carry out a procedure.

In this bill itself, what will the liability be if the bill were to pass in its present state? What problems are created or which problems are solved?

Ms Goldberg: Criminal offences are created in the bill, and there are very heavy fines that can be imposed as well as criminal convictions.

Mrs Lindhout: Could we also point out that it is not only teachers who are performing a lot of these acts. In many schools it is not teachers; it may be aides, it may be other members of the staff who are involved in these types of activities. The schools generally operate on the basis of whoever is best suited to meet the needs of a particular child, because there is a relationship or something, a comfort level, or perhaps a physical ability to deal with a particular student.

Mr Wessenger: I would like to have counsel address some clarification items in this regard.

Ms Bohnen: This legislation does not address civil liability in any way. It does establish penalties where individuals perform controlled acts, and those penalties are essentially the same as exist today for practising medicine without a licence. But just as there are mechanisms whereby medical acts may be delegated down to non-professional personnel, including teachers' aides, nurses, etc, so does this legislation. Of course, if something like catheterization, as an instance of toileting, were performed under the proposed legislation, it would be sheltered by the exception to which the government is committed.

Mr Bradley: It is not hard to tell I have been out of the classroom for 14 years, because we did not have teachers' aides and others on staff to do things at that time.

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Mr Hope: I am trying to get an understanding of where Mr Jackson was coming from on the issue he questioned about. The teachers perform, probably, "on the order of." Inserting medication or helping a disabled person in a classroom, they are acting on an order already. When they do an assessment, they are not actually making diagnosis, so the assessment aspect can still continue as if, as the social worker under the Ministry of Community and Social Services who was here before said, providing a service outside the health institutions or health care model.

I am just trying to get a better understanding, and you got me confused when you answered Mr Jackson. It is not that they are not making the initial diagnosis of the individuals, but what they are doing -- I am trying to put this in perspective of what was told to us yesterday by Alan Schwartz -- is getting to the root cause of things. This is where I am trying to put what you said today and what Alan Schwartz has said; that they are getting to the root problem is where everybody is up in arms.

Ms Bohnen: You are right, they can continue to assess. There are causes that refer to specific medical conditions, medical diseases and disorders, and the Ministry of Health's view is that medically trained people are qualified to diagnose those conditions. But there are other kinds of causes and descriptions of situations that families, children and students display in the classroom, for example, a misbehaving child. Of course, the teacher must assess in education terms and in behavioural terms the cause of that child's misbehaviour and arrive at a way of dealing with it, but that is not to say the teacher would diagnose that child as having a brain tumour. I do not see a problem, and Alan Schwartz yesterday did not see that there was a problem.

Mr Hope: But it would be in conjunction with the medical profession. It will not be independent by a school to make all these assessments and diagnoses, but it will be is a combination of the medical model, whether it be a physician or a --

Ms Bohnen: I think there are overlapping models. Take the child who is behaving in a strange way in a classroom. The teacher and the guidance counsellor and other resource people in the school have the training and the experience to know when they are dealing with something that they can deal with on their own. But I am sure they also know when they have a child -- I hope our guests will correct me if I am wrong -- whom they realize needs to be seen by a physician because what is troubling this child goes beyond their expertise. They would not try to make a medical diagnosis and substitute for a physician, but within their own competence, they would analyze the nature of the child's difficulty and respond to it. For that we use the word "assess" and say, "Continue to do it."

Mr Sola: I think I understood you to say that there is a reluctance on the part of some students and parents to seek professional help. Then I guess the question is, how do you influence them to do so, and is the referral to professional help somehow taken as some sort of medical assessment? Is that what you are afraid of?

Mrs Lindhout: Our main concern actually is that the school board staff, teachers and others, will be afraid of that and therefore not begin to do the kinds of things that would lead to a successful referral to a medical professional. There are in fact situations involving children from backgrounds where parents speak neither French nor English, where they are very reluctant to seek the kind of professional or psychological or psychiatric assistance they perhaps should be seeking for their children. The teacher, if that teacher or someone else in the school system gains the confidence of the parents, can sometimes eventually persuade them to do that. But that process might be interpreted by some of the staff as falling under the controlled act, and that is why our main concern is that the situation be clarified specifically in the act so there are no misgivings, no doubts and no concerns on the part of school board staff.

Ms Haeck: I am not sure if you have had a chance at the ministry to look at some of the proposed amendments put forward by the individual professional groups. What you have laid out in your original presentation is the fact that obviously teachers and teachers' aides and other people employed by the board are performing functions which some professional groups feel very strongly should be their province. Could you give me some of your thoughts on what would happen if those amendments were reflected in the proposed legislation?

Mrs Lindhout: We have not had the opportunity to look at any specific proposed amendments.

The Chair: Thank you very much for your participation. Are there any comments from the parliamentary assistant or ministry staff?

Ms Bohnen: You spoke of your concern or misgivings about the extent and application of the controlled act which might deter teachers from the kinds of interactions that would be beneficial and quite permitted. It strikes us that no matter what the format of this legislation is in the end, a number of consumer groups have said there is a need for public education so the public understands what it means, what their rights are and so forth. Perhaps there is also a need for education of education professionals so they can be comfortable with the impact this may have on them and their role. Do you have any comment on that?

Mr Jackson: This is legislation by placebo.

Mrs Lindhout: As legal counsel just pointed out, it is the judicial implication of the legislation that is not clear. If that were clarified, we would be able to work with the Ministry of Health or on our own to prepare the information and communicate it to school boards. We have a good mechanism for doing that.

Mr Jackson: Just for clarification, I get the sense from what I am hearing teachers tell me that it is a case -- maybe legal counsel can respond to this -- where a child is assessed or diagnosed, however you call it, by a teacher --

The Chair: No, there is a significant difference, Mr Jackson.

Mr Jackson: Okay. In a classroom setting a teacher draws some conclusions based on her observations and can do one of several things. If there is not a great lineup she can bring in a psychometrist or a speech-language pathologist or speech-language therapist, someone who can do further assessments and then potentially do a diagnosis. But if the referrals are one-year waits, maybe year-and-a-half waits -- and in many cases they are -- the school board is obligated if in its best opinion the child's program must be modified. If I am hearing and understanding the concern in the classroom, that classroom teacher, regardless of all the education we can give them about this legislation, is fearful they will not start program modification until that year down the road when the child can be seen by the competent professional to do the diagnosis and confirm the adjustment in the child's program.

Today in Ontario, the reverse is occurring. There is program modification and observation. That is the concern I believe the teachers are trying to express to us and that the ministry is trying to articulate, that there will be delays, not because the school board is not inclined to come to a conclusion, make a diagnosis and implement program modification, but rather that the legal counsels in the various school boards will advise them when asked that teachers cannot make those program adjustment changes until, in accordance with this legislation, the competent professional prescribes, based on a diagnosis, that program modification.

The Chair: Interrogative?

Mr Jackson: You did say comment or question. Thank you, Madam Chair.

The Chair: And I would just point out to everyone that you are making a speech. That is okay.

Mr Jackson: No, I am not. I am very clearly laying out the concern, because I do not want to hear the word "disease." These are not diseased children, these are children who have some anatomical or neurological dysfunctions which require assessment and diagnosis and treatment, which we call in schools "program modification." So that is the scenario and that is what I think is the area of concern, and that is what I am sensing will be the outcome. End of speech.

The Chair: Thank you for your comments, Mr Jackson. I call on the parliamentary assistant, who wishes to comment.

Mr Wessenger: I am going to have counsel comment, but I think we should remember this legislation deals with health care and not educational services. With that, I will turn it over to counsel.

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Ms Bohnen: That is the first point I would have made. To refer to the example you were providing, which I think had to do with children who undergo psychometric testing prior to a determination of what changes in program or approach are needed, that is a good example because -- I hope I do not get into hot water with our Ministry of Education guests -- it is not the case that every classroom teacher applies, administers and interprets psychometric tests. Am I correct in saying that?

Mrs Lindhout: Yes, you are correct, but it does occur.

Ms Bohnen: It does occur, but it is not the norm.

Mrs Lindhout: No.

Ms Bohnen: The norm is that people with specific expertise, either a psychometrist or a psychologist, do this, not classroom teachers. Because it is complex; it requires special expertise to do it properly. But that does not stop any teacher from observing the signs of difficulty a child has in his or her classroom and making changes in teaching approach and program to respond to that child's difficulties. That is an education matter, not a health matter.

The Chair: Thank you for the clarification.

Thank you for appearing before the committee today. I know you are aware that if there is additional information in light of the concerns or the discussions that you think might be helpful to committee members, or if there is any information you would like to share with us, if you could present it to us prior to or during the deliberations on clause-by-clause we would be very pleased to hear from you.

Those are all the scheduled presentations we have for this morning. I will entertain any comments from committee members at this point. What I would like to mention is that the clerk has requested from all three caucuses all amendments proposed for discussion during clause-by-clause. It would be helpful if they could be submitted to the clerk by Friday of this week, if possible, so that they could be integrated into a package which would be quite comprehensive, and then she could have them ready, bill by bill, as we proceed through.

Mr Wessenger: Bill by bill, or just the first bill by Friday perhaps?

The Chair: We would prefer all bills if possible. If that is not possible, at the earliest opportunity. The clerk would appreciate whatever you have available by this Friday and the rest will follow as expeditiously as possible. I anticipate, although we have not had formal direction yet from the House leaders, that clause-by-clause will begin fairly soon after the House resumes on September 23. This committee sits, for the information of the public as well as for members in scheduling their time, on Monday and Tuesday afternoon following question period. That is the time that will be dedicated to clause-by-clause discussion.

I am sure there will be a subcommittee meeting to discuss in what order we will go through this. There are some issues to be discussed there, and I know the whips from all three caucuses would appreciate the views of the members as to whether we should deal with it sequentially or whether you would prefer to hold out certain issues for debate and discussion, as has been the practice in other committees.

I am assuming we are not going to begin on Monday, September 23, because it is the first day of the House session, but in fact we will begin on Tuesday, September 24, unless we receive additional notification.

Mr Bradley: Dealing with Sunday shopping.

The Chair: That is the assumption now. You will be notified if there is a meeting on September 23, but I think that is unusual, is it not, to have it the first day of the House?

Clerk of the Committee: No.

The Chair: The clerk informs me that it is not unusual and that we should assume that we could begin on September 23 unless otherwise notified. Members will receive notification, and interested members of the public can contact the clerk's office or there will be a posted notice as to whether the clause-by-clause hearings will begin on September 23 or September 24, as notified. This, of course, will be subject to House leader meetings and discussions. Any comments from members of the committee?

Mr Jackson: As this is our last public meeting, I would like to thank the clerk and in particular the legal counsel, whom I have been giving a difficult time on various occasions.

The Chair: Nobody noticed, Mr Jackson.

Mr Jackson: In my seven years, with the possible exception of one or two education bills, this is probably the most comprehensive piece of legislation we have had to deal with, and I wanted to commend legal counsel. I have not always agreed with them, but I have enjoyed how well prepared they have been for this committee, and that has been very helpful.

I would also like to express the regrets from our caucus that several ministries were unable or unwilling -- we will perhaps never know -- to attend before the committee to deal with some matters. For those that were available, I wish to thank the ministries for being here when so requested.

The Chair: Mr Jackson's very kind comments about the staff from the Ministry of Health, the office of the Clerk, the research and Hansard people are probably echoed by all three caucuses and all members of this committee. I see all heads nodding, so Hansard will note that.

Mr Bradley: Some are nodding off.

The Chair: One further bit of housekeeping, an important matter: The next summary will be distributed to members' offices later today or tomorrow. That is a message from our very able research assistant, Alison.

Mr Burrows: There is one submission that we promised yesterday which unfortunately has not arrived. We found a typographical error in it at the last minute.

The Chair: Is Mr Jackson going to take his comment back in light of this new information?

Mr Burrows: It will be given to the clerk within the next day or two.

The Chair: We appreciate that.

Mr Jackson: I am quite confident that legal counsel do not do their own typing.

The Chair: It is always good to have a little humour about these matters.

The standing committee on social development now stands adjourned. It will reconvene upon notice for clause-by-clause.

The committee adjourned at 1147.