CONTENTS
Monday 9 December 1991
Advocacy Act, 1991, Bill 74, and companion legislation / Loi de 1991 sur l'intervention, projet de loi 74, et les projets de loi qui l'accompagnent
Ministry of Citizenship
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: Cooper, Mike (Kitchener-Wilmot NDP)
Vice-Chair: Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
Carter, Jenny (Peterborough NDP)
Chiarelli, Robert (Ottawa West L)
Fletcher, Derek (Guelph NDP)
Harnick, Charles (Willowdale PC)
Mathyssen, Irene (Middlesex NDP)
Mills, Gordon (Durham East NDP)
Poirier, Jean (Prescott and Russell L)
Sorbara, Gregory S. (York Centre L)
Winninger, David (London South NDP)
Substitutions:
Malkowski, Gary (York East NDP) for Mrs Mathyssen
Sullivan, Barbara (Halton Centre L) for Mr Sorbara
Wessenger, Paul (Simcoe Centre NDP) for Mr Mills
Clerk: Freedman, Lisa
Staff: Swift, Susan, Research Officer, Legislative Research Service
The committee met at 1538 in room 151.
ADVOCACY ACT, 1991 AND COMPANION LEGISLATION / LOI DE 1991 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Consideration of Bill 7, An Act to amend the Powers of Attorney Act; Bill 8, An Act respecting Natural Death; Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / Projet de loi 74, Loi concernant la prestation de services d'intervenants en faveur des personnes vulnérables; Bill 108, An Act to provide for the making of Decisions on behalf of Adults concerning the Management of their Property and concerning their Personal Care / Projet de loi 108, Loi prévoyant la prise de décisions au nom d'adultes en ce qui concerne la gestion de leurs biens et le soin de leur personne; Bill 109, An Act respecting Consent to Treatment / Projet de loi 109, Loi concernant le consentement au traitement; and Bill 110, An Act to amend certain Statutes of Ontario consequent upon the enactment of the Consent to Treatment Act, 1991 and the Substitute Decisions Act, 1991 / Projet de loi 110, Loi modifiant certaines lois de l'Ontario par suite de l'adoption de la Loi de 1991 sur le consentement au traitement et de la Loi de 1991 sur la prise de décisions au nom d'autrui.
The Chair: Pursuant to standing order 123, the clerk has received designation from the Liberal Party and we will be arranging a meeting with the subcommittee for that purpose tomorrow.
I would like to announce that today we are commencing the consideration of six bills: Bill 7, An Act to amend the Powers of Attorney Act; Bill 8, An Act respecting Natural Death; Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons; Bill 108, An Act to provide for the making of Decisions on behalf of Adults concerning the Management of their Property and concerning their Personal Care; Bill 109, An Act respecting Consent to Treatment, and Bill 110, An Act to amend certain Statutes of Ontario consequent upon the enactment of the Consent to Treatment Act, 1991 and the Substitute Decisions Act, 1991. Briefings on these bills will occur today, tomorrow, December 16 and December 17. Public hearings will commence in the recess on a date to be determined by the House leaders and whips.
MINISTRY OF CITIZENSHIP
The Chair: Today we have the Honourable Elaine Ziemba, Minister of Citizenship and minister responsible for human rights, disability issues, seniors' issues and race relations. Accompanying Ms Ziemba are Clem Sauvé, Trudy Spinks, John DeMarco and Mary Beth Valentine. Minister, will you tell us how you wish to proceed.
Hon Ms Ziemba: First of all, I would like to introduce the people who are here with me today. I am sure most of you know the various people, but I would like to do that. From the Office for Disability Issues are Clem Sauvé, senior adviser; John DeMarco, executive co-ordinator of policy and research, and Trudy Spinks, legal counsel on the advocacy project team. Mary Beth Valentine is the manager of the psychiatric patient advocate office and is on secondment to the advocacy project team. Of course, I have my own personal staff with me today: Paddy Kamen, Winnie Ng and a few other people.
What I would like to do is make some introductory remarks, if that is possible. I leave that up to you.
The Chair: Sure. Would you like your staff to give a presentation right afterwards or would you like questions and answers?
Hon Ms Ziemba: My understanding was that I would make my opening remarks and then there would be an hour's time for questions, retorts and comments. The legal staff are here to then give a policy overview, if that is necessary or required. That is fine.
The Chair: If everybody is in agreement, that is the way we will proceed.
Hon Ms Ziemba: It is a pleasure for me to be here today with an overview of the advocacy legislation you are about to consider.
We have known for a long time that there has been a consensus within the disabled community and among Ontario's senior citizens that a comprehensive advocacy system is needed. Reports on advocacy for Ontario's most vulnerable citizens have been gathering dust too long. I of course refer to the Sean O'Sullivan report and the Fram report as well.
Ontario has approximately 600,000 citizens, including the frail elderly, who have moderate to severe disabilities. Their impairments may be mental, physical or both. Most of these people can solve their own problems in daily living or have the support of family and friends to assist them. However, some of them do not have support. They are the people we refer to as vulnerable adults. They may be living in institutions or the community and may suffer from neglect, abuse or exploitation. These are our fellow citizens who have been long abandoned and forgotten. If we want to call Ontario's society compassionate and caring, we cannot let this injustice go on.
In his 1987 report, You've Got a Friend, the late Father O'Sullivan eloquently stated: "Regardless of physical or mental illness and/or impairment, vulnerable persons must have the power to make decisions and exercise their right of choice. People are people, whether or not they have identifiable handicaps. The advocacy system is designed to foster a vulnerable individual's sense of dignity as a valuable contributing citizen of Ontario."
The development of a new Advocacy Act will establish a province-wide independent system of non-legal, social advocacy for vulnerable adults. The advocacy system will deal with rights, personal care and systemic concerns. The act provides a new and innovative approach to social policy. It is our conviction that it will go a long way towards addressing some long-standing social injustices that have affected disabled people. It will banish the presumption that because of their disabilities, these people cannot make decisions or carry out everyday tasks.
Advocacy will increase the autonomy of individuals who, because of their disabilities and, in some cases, because of systemic barriers, have difficulty obtaining information, making their wishes known or protecting their own interests through informed decision-making.
When the problem is system-wide, advocates can work with residents' councils so that residents themselves use their collective voice to make positive change. The principle of empowerment is key to this legislation. This act does not take a paternalistic approach. Advocates can listen, they can lobby, they can inform, they can inspire, but they will not make the choices.
Creating a system that will empower vulnerable adults will be an enormous challenge, one that can only be met through the marshalling of new and existing resources.
The Advocacy Act is not intended to dismantle current programs or interfere with the care given by devoted and conscientious families. We understand the supportive role played by family members, friends and care givers. In fact, one of the act's stated purposes is to "acknowledge, encourage and enhance...family and community support for the security and wellbeing of vulnerable persons."
The legislation also recognizes the important role of agencies and individuals already advocating on behalf of vulnerable people. The act will allow the Advocacy Commission to provide grants or enter into contractual arrangements with non-profit community organizations. It will open the door for advocacy on either a paid or a volunteer basis.
Right now, advocacy services are few and far between. Community-based advocacy programs, such as the Advocacy Centre for the Elderly and the Advocacy Resource Centre for the Handicapped, provide legal services. Volunteer groups, such as the Concerned Friends of Patients in Long-Term Care and other patients' rights groups, provide non-legal advocacy. Some hospitals and residential facilities hire their own advocates, but there is concern that this could lead to conflict of interest.
There is also a need for advocacy services that address the culture, religion and traditions of aboriginal people and those from our multicultural communities.
Let me add that the services that do exist tend to be in larger towns and cities. There is no province-wide coverage by any organization, except the psychiatric patient advocate office, which is part of the Ministry of Health. It has provided advocacy in the government's 10 psychiatric institutions since 1983. Our plan is to transfer the PPAO to the Advocacy Commission once it is in place.
Experience shows that vulnerable adults know what they need and that they will be heard more clearly with the help of an advocate. I would like to share with you some examples of the types of situations advocates have encountered.
The first example is a woman with diabetes and poor eyesight, who was also a wheelchair user, who developed kidney problems. The staff in her long-term care institution thought she was complaining unnecessarily and removed her wheelchair, apparently because she often fell. An advocate took the woman's complaints seriously and saw to it that she visited a geriatric specialist. She was diagnosed with two cancerous growths on her kidneys and died four weeks later. The advocate did ensure that the woman received necessary pain medication before she passed away.
The daughter of a woman in an nursing home asked for information about her mother's medication and was refused. The mother was hard of hearing and did not speak English, so an advocate brought in an interpreter for her. She could now tell the staff that she wanted her daughter to have the information. The record showed that woman had been given higher and higher doses of Valium for no clear reason, and she decided to have her medication stopped. With the help of the advocate, who explained the situation and her options, this woman made choices about her own treatment.
A young man applied for a disability pension on his doctor's recommendation. He received notice of a review hearing, but he could not understand the notice because of his disability. He did not show up for the meeting and, as a result, was denied the pension. The very reason he needed the pension, his disability, shut him out of the system. A friend contacted a community-based advocate, who ensured that a new hearing was scheduled and that the man attended.
In another case, a man with a degenerative disease was admitted to a privately owned long-term care institution. He woke up with his breathing passages obstructed, called a nurse and had to wait an hour before she came. This happened several times. An advocate learned that the man's treatment took a long time and the nurses put it off until they were not busy. The advocate explained to the staff that the man was afraid of choking and an agreement was reached so the patient could get a quicker response.
These are cases where an advocate was able to intervene. But sometimes there is no local advocacy service, and no one is called to help. For example:
A recent article in the Toronto Star noted the deaths of 20 people because of the use of restraints. The examples included an elderly and confused woman placed in a Metro area hospital because she had wandered away from home. She was tied into her wheelchair or her bed for almost a month. She eventually strangled on her restraint.
An inquest into the death of one of 23 former psychiatric residents of a boarding home showed they were repeatedly abused and suffered from malnutrition and dehydration. A person who was incontinent was forced to wear urine-soaked sheets. Others were forced to drink from baby bottles. This is how bad things can get for some vulnerable adults.
The very fact of entering an institution can strip a vulnerable person of the right to make choices. Decisions such as when and how to dress, bathe and eat are highly regimented. In institutional settings, many people lose the power to control their own lives.
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It is not the staff in institutions that are the problem. Most staff are concerned and dedicated people, but they can be caught like their patients in a system beyond their control. All too often, this means patients' concerns may be misunderstood, ignored or simply not believed.
Outside of institutions there are other problems. People with mental and physical disabilities often experience discrimination in hiring practices, housing, transportation and other basic human needs.
The Advocacy Act will create opportunities for people to take control of their lives and transform the conditions they live in. It does not create or extend new rights to vulnerable people. Instead, it helps to ensure they have the basic rights that most of us take for granted.
There is no obligation on the part of a vulnerable person to speak with an advocate. Vulnerable people have the right to be left alone. They also have the right to expect that what they say to an advocate is kept confidential.
The Advocacy Act requires that information about clients be kept confidential except when vulnerable people give authorization. It provides a narrow set of circumstances in which an advocate may choose to reveal information, for example, in the course of legal proceedings or to prevent a crime of violence.
Central to the new advocacy system will be a commission operating at arm's length from the government. The majority of commissioners will be individuals who are or have been disabled, and they will be selected through a process that provides an unprecedented opportunity for community involvement. The commission's membership will be fairly balanced between the number of men and women, and it will reflect the geographic and cultural diversity of Ontario.
Grass-roots consumer organizations for seniors and people with disabilities will nominate eight of the 10 members of an appointments advisory committee. The committee will screen, interview and select prospective commissioners for my consideration.
Once appointed, the commission will have a broad mandate and the latitude to develop the guidelines for the advocacy system. The commission's responsibilities will range from promoting the rights of disabled persons to establishing qualifications for advocates. It will recruit and train staff and develop the policies, procedures and codes of conduct.
The commission will encourage vulnerable people to advocate for themselves and form mutual interest coalitions. One way this will happen is by working with residents' councils in long-term care facilities.
The act allows the commission to form advisory committees to help it make decisions. These committees could take a number of different forms. One option would be committees for special interest groups such as family members, service providers and care givers. Another option would be to have stakeholders representing those with different types of disabilities, possibly on a regional basis.
Advocates will not provide legal services or represent their clients in court proceedings. They will, however, ensure that legal assistance is made available when needed or requested.
The act describes three forms of advocacy.
Rights advice will come into play when vulnerable persons could lose their right to make decisions. For instance, anyone who becomes the subject of a guardianship application under the Substitute Decisions Act must be visited by an advocate.
In these situations, the advocate would help explain the person's rights and options, find out what the person wants and obtain legal counsel, if that is desired. Under the provisions of the Consent to Treatment Act, advocates will also be available to people who are deemed to be incapable of making decisions about medical or psychiatric treatment and who may want to contest that evaluation.
Individual advocacy is meant to help vulnerable persons address specific problems. Advocates will not have the authority to order something done, but they will be expected to vigorously pursue a vulnerable person's wishes through all lawful and ethical means.
Systemic advocacy focuses on problems that go beyond one individual. An advocate working in an institution may discover a regulation, policy or practice is hurting a large number or all of the residents. The advocate will investigate the problem, document it, bring it to light, or help a person or group of vulnerable people do it themselves.
Whenever possible, an advocate will try to build a co-operative atmosphere in which all parties work together to advance the rights of a vulnerable person.
Under the act, advocates will have the authority to enter publicly funded or regulated facilities, such as institutions, hospitals, homes for the aged, nursing homes and hostels. They will not need a warrant and they can enter at any time that is reasonable under the circumstances.
Advocates will also be granted access, with a vulnerable person's consent, to a facility's records on that person. There are some limits to this access. Advocates will not be allowed to search through records or remove some of them that are needed for a person's current care, such as medical charts.
Rights of entry will also be granted for unlicensed boarding homes and similar facilities. Advocates can enter private residences between 8 am and 8 pm, and they are entitled to meet in private with any person they have reason to believe wants or could benefit from their services.
I would like committee members to know that my ministry will listen closely to your recommendations and suggestions, and those of the various organizations and individuals who appear before you. We want to make this legislation the most effective tool for those who are at the most risk.
Everyone is shocked and appalled when people die of neglect or when abusive situations are uncovered. Everyone asks, "Why was nothing done?" Under the proposed legislation, something will be done. Thank you very much for your attention.
The Chair: Thank you very much. Could you give us some indication of how long your staff presentations are going to take?
Hon Ms Ziemba: It could take 20 minutes. It could take a bit longer.
The Chair: Would the committee like to ask the minister questions right away, or wait until after? Questions right away? Mr Harnick, would you rather go now?
Mr Harnick: Sure. Minister, I have had, as I am sure other members of the committee have had, visits from various organizations, and one of the areas of concern that seems to come up from organization to organization is the interrelationship between the advocate and members of the family. What happens if we have a person suffering from a disease of some sort where they have problems with their memory, difficulty giving instructions, and the family has been looking after that individual, and that individual, for whatever reason, has to be either temporarily or permanently institutionalized?
The act, without any doubt, talks about the importance of the family, but it really does not deal with the interrelationship between the family and the advocate and the vulnerable individual, and I have some concerns that, because the act does not deal specifically with that relationship, we may run into problems down the line.
Have you had the same kind of requests and concerns, obviously meeting and hearing from the same groups that I have heard, and is there any idea you can give us about making some amendments to protect that relationship or define families' input?
Hon Ms Ziemba: First of all, I have to say very strongly that the act is intended to support family and friends and also to help people who do not have family and friends. I often go into my personal things -- and I will not today, but I know of many instances where people just do not have the family or friends or care givers to support them and certainly need to have an advocate there. That is something I wanted to stress, because I think it is very important to bring that into the context for the whole act.
We are also here obviously to make this act work, and I say in the very final part of my statement that what we want to do is to have a system in place in our society so that vulnerable people are not abused, neglected or hurt in any way. If there are amendments, if there is a way to strengthen the act to make that happen, that is part of the procedure of a committee hearing and certainly is something we would take into consideration if the wording can define the act so that it strengthens it and helps all members of our society.
What it is supposed to do is to make sure that vulnerable adults get the care that is there. Family and friends are very important. As a daughter of a mother who had Alzheimer's disease, I know that if I had not been there to support and help her, her final stages would have been very difficult, so I feel very strongly about family and friends. I know the role they can play. However, there are people in our society who do not have those people.
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Mr Harnick: No question, I agree with you, and it is interesting because the Alzheimer's Society is one of the groups that have consulted me. What they say is that the act in three or four different places says "acknowledge, encourage and enhance individual, family and community support for the security and well being of vulnerable persons" but they say the act does not set out the next step. I do not know whether it is possible to set out the next step, but what is the authority and how far can the family's wishes, as the controlling group, be maintained before the advocate comes in and takes over from the family? Because you are dealing with a person who may not be able to give the family instructions. You are dealing with a person who, because he cannot give the family instructions, cannot give the advocate instructions either.
What if you end up with a conflict between the family who has been looking after this individual for perhaps a long period of time, and what the advocate will ultimately be saying should be done? And if a conflict develops, how do we resolve that? Is it always resolved in favour of the advocate, or is it resolved in favour of the family? I am not expert in this legislation, but in that regard the act seems to be silent.
Hon Ms Ziemba: There are two comments I really have to stress with you. One is that it is not the advocate's wishes that will ever be the utmost, and it is always the vulnerable person's wishes. If the family is acting on behalf of -- and I hope you would not use the word "controlling." That is what really frightened me in your statement. "Controlling" is very frightening to myself, who is not vulnerable, but could possibly become so, and any one of us in this room could. I hope a family is working on behalf of and with the vulnerable person and is exercising the things they hope and understand are for the betterment of the vulnerable person. But I hope the word "control" -- I know you did not intend it to be that.
Mr Harnick: No, that is quite so.
Hon Ms Ziemba: I just had to say that, because it does frighten me when I hear those terms being used. I would have to say again, and very clearly, that it is the desire and the wish of this act, and has been the desire for many advocacy groups across the province for over 17 years, that there be an advocacy commission.
The Alzheimer's Society in fact was very instrumental in going before the government of the day, which was 16 or 17 years ago, and out of that came the Fram report. They were consulted at length about what should be in the Advocacy Act and how that would work and benefit and help family members. I know, having gone through the experience myself just a very short time ago so it is very clear in my memory, I would very clearly have liked to have had a commission there to go to for advice and help. The act is to do that, and it certainly would be to the benefit of family and friends to have that assistance.
Again, if there is some way we can strengthen the act in the framework of the terms of the legislation to support the vulnerable adults and to assist family and friends, that certainly will be part of what this committee's work will do. I know, because I have spoken to people individually in this room, that people want the best for vulnerable adults.
The Chair: Thank you very much, Mr Harnick. Mrs Sullivan?
Mrs Sullivan: Thank you, Mr Chairman. We appreciate your being here, Minister, to discuss some of the issues in regard to this bill.
Hon Ms Ziemba: It is my pleasure.
Mrs Sullivan: Our party is very concerned about the interrelationship of the three bills and sees, throughout those bills, some inconsistency and confusion which, as we go through this process, it seems to me have to be cleared up.
Our party has suggested that the three bills in total be used as a draft bill for further discussion, because there are significant problems in terms of the overlap and the relationship between each of the bills. Apparently the government has decided not to proceed that way, because we are here. We think that is unfortunate, because we think there is going to have to be a lot of amendments to the three bills. If this entire triumvirate of bills is going to work, the amending process is going to have to be significant and cannot be done in isolation, one bill against another.
You have indicated in your statement that rights advocacy is a right of this bill. In fact, it is not. You understand that it is a part of this bill; it is not written into this bill. The rights advocacy that is included in the Substitute Decisions Act or in the Consent to Treatment Act is implicit in this bill, but there is no specific rights advocacy program included in the Advocacy Act making it mandatory, for example, for people who are subject to mental incompetency hearings or to guardianship, to be identified through this act as having the right to an advocate. I think that is where you see the confusion and the intricacy of the three related pieces of legislation.
We are also concerned, as the Conservatives have indicated, that this act defines "vulnerable people" very broadly. Your opening remarks have indicated that many vulnerable people with moderate to severe disabilities do indeed have the support of family or friends, yet the model you have selected in the Advocacy Act is a very broad one where the drafting of the bill downplays the role of family and friends and agencies. We see that as a problem.
These are the questions I want to direct to you at this point: What other models did you consider in terms of developing the advocacy commission? Why was the proposal, if someone appropriate were willing and able to serve in an advocacy position for a vulnerable person who happened to be a family or a friend, or indeed an agency such as the service agencies that are already for many people providing volunteer support, rejected? I would also like to know what the cost implications are of the advocacy commission on a full-year basis. How many employees are you anticipating when it is fully up and running? What would be the difference in cost had you selected a model where family and friends' participation is specifically defined?
I am also wondering if you would be willing to amend section 7 of the Bill to include specific mechanisms which would enable family and friends to participate in advocacy. I will get to my next questions on the next round.
Hon Ms Ziemba: You obviously had a good day in question period. I am going to refer you, first of all, to the act itself, clause 7(1)(d), "provide advocacy services as required by any other act." We feel that covers not only the other two acts, but any other acts that might eventually come to being and not exclude any that might exist or might be developed in the future.
I also would like to address the issue of the broad terms. One of the reasons we did that is to make sure we did not exclude anybody who might be vulnerable in future or who will fall between the cracks. That so often happens when you do a very defined definition, that you do sometimes have people who actually fall between the cracks, who would be the very vulnerable people we would want to serve and not to leave out. That is a concern of ours.
I do not feel we have rejected agencies and family. We have said very specifically in the act that agencies will be given a role to play if they already provide a service. Family and friends and care givers certainly have a role to play. That has been said very many times in the act. I guess you were discussing the cost to family and friends. There are vulnerable people who do not have family and friends. I have to reiterate that. If a system was put in place with only family and friends providing that advocacy, what about the many whom we are really trying to reach out to who do not have family and friends? That is really a concern.
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Mrs Sullivan: On a point of information, Mr Chairman: My question specifically relates to expanding the definitions to ensure that for those vulnerable people who did have family, friends or an agency to support them, the advocacy commission would not necessarily have to kick in in those particular instances. That would be very difficult to do with the wording of the bill now.
Hon Ms Ziemba: The act is intended to not --
Mrs Sullivan: I understand its intention. I am asking if you would take a specific amendment --
Hon Ms Ziemba: I said to you as well that there would certainly be opportunity, if we can strengthen that part of it, and I do not think I am going to reiterate that. This is what the work of the committee is: to assist and make sure the framing of the work will do that.
Because you asked for the cost of family and friends being included, I presumed -- and I am sorry if I presumed too far -- that meant you were only using a system that would have family and friends and would not provide for the care of people who do not have family and friends. You asked about the cost and we are thinking of a startup cost of $9 million to $10 million. It is hard to say what the final cost will be, but we are thinking it could be a little higher as we get into full implementation. It is very difficult at this time to say how many employees we might have when it is very uncertain how many vulnerable persons without family and friends actually will need the service. However, we have always stated that we wanted to make sure there was a system in place that would work well and that would be there for everyone, and not to have a service that could not be in place.
We might find that when we get into certain regions, certainly within the metropolitan urban settings, it will be easier to do a contract for fee-for-service with agencies that exist, which are already doing that type of work and which might be able to assist and help us. However, there might be different ways we will have to work when we get into the very far regions of the north where the communities are spread very far and where people live in a very different situation.
We are also going to be working very closely with the native community because obviously the services we will be assisting with or providing to the native community will be built on the needs they see. Their cultural divisions, their diversities, are different from some other communities'. We certainly will have to explore with the native community how we are going to be of assistance in making sure the culture is retained and that we provide those services to the best of our ability.
I might have missed a question. Is there something from the staff that they would like to add to that?
Interjection: There were three or four components.
Hon Ms Ziemba: It was a long question.
Mrs Sullivan: I was wondering what other models you had considered.
Hon Ms Ziemba: Oh, I am sorry; I missed that. I did not put my glasses on, that is why. First of all, within the whole realm of having an advocacy commission, we are leading by far. There is one other jurisdiction which has a very good advocacy commission and that is in Denmark. They are now watching us very closely and they hope to follow with some of the things we have done that will be very unique and different, so they have been following this piece.
Unfortunately, across Canada there is no other jurisdiction we can look at. There is nothing that exists. We are going to be unique and we are certainly going to be going out in the forefront.
We looked at the work that was done by Steve Fram and also by Father O'Sullivan, and we looked at the work that had been done within the Office for Disability Issues over the past many, many years and we put all that together in our form of wondering what type of commission we would have.
Mr Winninger: The minister knows there are often difficult situations. Just setting aside for a moment the issue of family which Mr Harnick raised, there are situations where the instructions that a person, a patient, gives to the advocate may not accord with that advocate's view of what is in the best interests of the patient objectively. I am not talking now about life-threatening situations but perhaps rather the issue of medication that a psychiatric patient may need to remain lucid and responsive to treatment. How do you foresee the advocate's role in that kind of situation?
Hon Ms Ziemba: First of all, as I said in my statement, an advocate can often give information in a way that a vulnerable person can understand, so perhaps it might even assist a vulnerable person to be able to understand that the medication is in his or her best interests. Sometimes vulnerable people do not have that information given to them in a way that can be assimilated and understood.
With an advocate in place who can then find out what the information is, learn about it and then be able to disseminate the information properly, I think that should be of assistance and help to vulnerable people and assist them in making the right choices. Often choices are made not with the full information needed or with the best understanding of that information, and advocates will have the time and also will have the background and experience, I think, to be able to deal with those problems.
Mr Winninger: Thank you. That clarifies it.
Mr Sterling: I come to this concept with a completely open mind. I hope to hear various groups make their presentations over the next couple of months because in a way it is an exciting concept in terms of trying to deal with a problem.
I also find it very discouraging that we have come to the point in our society where we have to have hired advocates to care for other people, and I do not like that admission.
This is one of the areas I am concerned about. I am very much interested in the last question, particularly in terms of schizophrenic patients who are only lucid when they are taking medication, and that the natural tendency for schizophrenic patients, after they are on medication, is to want to go off medication. One of the reasons is the side effects, and they are starting to feel better and that kind of thing, but once they go off the medication, then they go into a period of incompetency and basically do not understand the need for going back on the medication. It is a difficult problem. When we get down to the details of the legislation I will be interested to hear groups talk about how you handle that kind of situation.
One of the problems I have in the legislation is that you leave up to the commission the qualifications for an advocate. I am concerned about that in that you can have good people and you can have bad people doing these jobs. You can have people who have all the best intentions but who get carried away in terms of what they might be advising or doing for a person and whatever. I guess the problem in that, in dealing with mentally ill patients, is that they are dealing with incompetent people and trying to take instruction from them. I know, having practised law, that it is difficult to take instruction from competent people, so that is one of the concerns I have. Can you give us any kind of outline as to what you would see as the qualifications for an advocate?
Hon Ms Ziemba: I think those are very good points. If you do not mind, I just want to make one comment on the point you made. It is a shame that we have come to a point in our society where we would have to think of an advocacy commission. I guess our dream and our vision would be that some time in society the advocacy commission, if it has done its role that it is supposed to in systemic advocacy, will not have the need, because the systemic problems will have changed. I guess we all share the hope that this will happen and that the vision will happen in the future.
However, going back to the role of advocates, you are right. I guess there will never be a system in place that is perfect. We are human beings, and there will always be people who will be well intentioned who will perhaps do the best job they possible can and others who might not. However, the qualifications were left to the regulation of the commission itself, because we felt that because of its being based in the grass-roots, it would come with very competent individuals who would have that definition and who would be able to understand the needs. There will be a shifting need, as I do not think the advocates of today will be the same as the advocates of perhaps 10 or 12 years from now. We have to understand that.
I think the qualifications will change as well. We will see that the qualifications will change as we continue in our expansion of understanding vulnerability, as we get a better understanding of our society's role and as we have a better understanding of systemic problems that face vulnerable people. I think those qualifications will continuously change, will have to be amended and will have to deal with the day.
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However, right now I hope we have vulnerable adults who would be trained by various groups of people to have an understanding of the different vulnerabilities, a capacity for learning, for understanding and for compassion, a skill of being able to communicate and patience. I think that will be difficult. It is certainly not going to be a role for everybody, because they are going to have to put aside their own personal beliefs and systems and instead understand the cultures that are different, and other people's systems and beliefs as well.
I would share with you that it is going to take very special types of people to be advocates. Having been in and come from the other place, I know there are people out there who do this in a very volunteer-type way, who have learned those skills and who have been able to advocate very well without the legal framework they could possibly have if we have the system in place. Family and care givers are among them. We have spoken to many families and care givers who have advocated so far beyond what people perhaps even of the legal profession have, Mr Sterling, and who have been able to do that in moving insurmountable mountains. They will be of great benefit to us, as we are certainly using the talents and skills of those people to be able to train and assist.
Mr Sterling: How far do you view this commission going in terms of the kinds of advocates it would be involved in producing, supplying, or hiring? You are confronted with a health care situation. You have also mentioned there are going to be advocacy services addressing some aboriginal issues and some from our multicultural communities. How far does this go?
We know that as politicians we have a tremendous number of people lobbying us already in terms of their wishes and desires. One of the problems I have as a politician is that I see the stronger people having the stronger lobbies, ie, the unions, teachers and those kinds of people. How far do you get involved in all of this? We could have hundreds and thousands of advocates at the end. There is no limitation on what you are saying to the commission it can get involved in, is there?
Hon Ms Ziemba: I agree with you wholeheartedly that there are now people who are very vocal who can advocate and hire lawyers and professional lobbyists. That seems to have become quite the trend. I think we are picking up on south of the border, and the lobby type of things people can afford to get together and hire those people to do.
However, vulnerable persons are left in a situation, especially if they are in institutions or in places where they have no family and friends, where they do not have somebody who can advocate on their behalf. They do not know that they can go out and hire a lobbyist and get together with another group of vulnerable adults to hire a lawyer or a lobbyist to support their need to change the systemic problems they face.
I guess we have a long way to go until we will be able to see vulnerable adults having as much power as what you are saying. I would like to see that vulnerable persons are being treated as equally and as fairly as every other individual in our society, with the ability to be able to carry out their wishes and be treated as all of us expect to be treated -- no more and no less, but treated fairly.
Mr Sterling: I guess I would consider myself in politics a vulnerable adult as well, so maybe I will get an advocate.
Interjection.
Mr Sterling: I do not want to pay you anything, Charles. I want a good advocate.
Hon Ms Ziemba: You have been here longer than me. You can say that; I cannot.
Mr Sterling: I can relate to this when you are taking care of an individual in a specific setting and finding the right answer for that individual. I have more difficulty as you spread the net wider and you get into systemic problems and start creating funding and advocacy -- when you get into the political realm as such. Then you are into other issues, and you are not into solving practical problems. The examples you give in your brief relate to practical problems; they do not relate to political problems. I do not know where you chop it off. That is my problem.
Hon Ms Ziemba: I guess none of us does.
The Chair: Could we now have the staff proceed with their presentations? Could you please identify yourself for the record before you begin?
Ms Spinks: I am Trudy Spinks, legal counsel. I intend to simply run through the basic provisions of the legislation, and when we are finished you might have some questions. If people have their acts handy they might want to refer to them.
Section 1 sets out the fundamental objectives of the act and essentially establishes the principles which are to govern the interpretation of the act as a whole. The overriding purpose of the act is to contribute to the empowerment of vulnerable persons through the provision of advocacy services.
As described in clause 1(b), advocacy services are intended to assist vulnerable persons in exercising control over their own lives and bringing about necessary changes in social and institutional systems. The act must be implemented in a way which promotes community development and recognizes aboriginal and multicultural interests. As the minister has stressed, the act is not intended to interfere with individual, community or family support systems.
Clause 1(f) expressly states the objective of enhancing and encouraging these relationships.
The eligibility for advocacy services is set out in section 3. Any vulnerable person 16 years of age or older will be eligible. In addition, refer to clause 7(1)(d). The commission will be providing advocacy services regardless of age to persons who are at risk of losing their decision-making power under the Consent to Treatment Act or the Substitute Decisions Act.
A vulnerable person is defined quite broadly in section 2 as "a person who, because of a mental or physical disability, illness or infirmity, whether temporary or permanent, has difficulty in expressing or acting on his or her wishes or in ascertaining or exercising his or her rights." This definition means that the existence of a disability does not in itself make a person vulnerable; it must also be coupled with a difficulty in exercising rights, obtaining information or communicating with others. This difficulty may be a direct consequence of the disability but may also result from the failure of other people to understand communications or provide adequate information.
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Subsection 3(2) states the type of advocate to which the act applies. Only advocates who are employed by the commission or in a community program operated under the act will be able to exercise the powers granted to advocates by the statute. Advocates may be employed on either a paid or voluntary basis.
There is nothing in this act which restricts the operation of existing advocacy groups or which discourages the formation of new advocacy groups which may choose not to be affiliated with the advocacy commission. It simply means that the provisions of this act, including the rights of entry and access to records, may only be exercised by advocates who are accountable to the commission.
Sections 5 through 15 describe the composition and functions of the advocacy commission and the method through which commissioners will be appointed. There will be a full-time chair and between six and 12 part-time members. The majority of the members of the commission will be persons who have or have had a physical or mental disability, illness or infirmity. The act requires that the importance of equitable representation of both sexes, minority groups and residents of all regions of the province must also be considered.
The commissioners will be appointed by the Lieutenant Governor in Council on the recommendation of the Minister of Citizenship. The minister must, however, make his or her recommendations on the basis of nominations put forward by an appointments advisory committee. It is this nomination process which effectively puts control of the commission into the hands of the persons it is mandated to assist.
The appointments advisory committee will be composed of 10 members. Like the commission, a majority of the members must be persons who have or have had a mental or physical disability, illness or infirmity. Two members will be appointed by the minister. The remaining eight must first have been nominated by organizations representing vulnerable persons.
Section 15 sets out eight categories of organizations which may participate in the nomination process. These categories consist of organizations representing persons with visible physical disabilities, illnesses or infirmities. Examples such as paralysis or amputation are listed. These examples are not exhaustive, however.
Persons with invisible physical disabilities, illnesses or infirmities are another category. Again examples are listed, including AIDS and epilepsy. Persons with psychiatric or emotional disabilities, illnesses or infirmities and persons with developmental disabilities are included. Persons with neurological disabilities, Alzheimer's syndrome being one of the examples, also fall into another category. The remaining two categories consist of organizations representing persons with multiple disabilities and patients' rights organizations.
Only organizations with at least 20 members, a majority of which are or have been persons the organization represents, may participate in this process. An exception to the membership criteria will be made in the case of organizations representing persons with neurological disabilities, as such individuals are seldom able to form organizations to represent their interests.
These organizations will collectively put forward two names for each position on the appointments advisory committee. The minister will select one person from each pair nominated and appoint these persons to fill eight of the 10 positions on the committee. The minister will fill the remaining two positions independent of the nomination process. This will provide the minister some latitude in attempting to ensure equitable representation according to sex, residency and so forth.
The committee's function will be to select and recommend two candidates for each position on the commission. The minister will choose one from each pair nominated, and these individuals will be appointed to the commission.
Once the commission has been put in place through this process, it will perform the functions described in section 7. The primary function of the commission will be the provision of advocacy services in the form prescribed in subsections 7(b), 7(c) and 7(d). Clause 7(1)(b) of the act describes what may colloquially be described as "individual advocacy" and provides that the commission will "provide advocacy services to help vulnerable persons to express and act on their wishes, ascertain and exercise their rights, speak on their own behalf, engage in mutual aid and form organizations to advance their interests."
In order to understand the nature of the advocate-client relationship under this act, it is vital to recognize that in no way does this section or any other part of the act give an advocate any decision-making power or authority over the vulnerable person. The advocate acts as an agent or a spokesperson for the vulnerable person in accordance with the instructions which have been provided by him or her. The relationship is quite similar to that of a lawyer and client, although conducted for non-legal purposes.
The commission's authority to engage in systemic advocacy is outlined in clause 7(1)(c), which calls for the provision of "advocacy services to help vulnerable persons to bring about structural changes at the political, legal, social, economic and institutional levels."
Clause 7(1)(d) requires the commission to "provide advocacy services as required by any other act." The Substitute Decisions Act, Consent to Treatment Act and the Mental Health Act, as amended, all require that an advocate meet with a person who is alleged to be incapable and at risk of losing the right to make his or her own decisions. In this situation, the advocate's role will be to provide information regarding the effect of the finding of incapacity and the available legal remedies.
The other functions of the commission include conducting public education programs for guardian rights to vulnerable persons.
In keeping with the emphasis on community development, subsection 7(2) provides that the commission may carry out most of its functions through non-profit community programs and authorizes it to make grants for this purpose.
The commission is required, however, to set the qualifications and standards for all advocates and to ensure ongoing compliance with these standards.
Sections 16 through 23 give advocates rights of entry to various types of premises. The purpose of this is to ensure that vulnerable persons are not denied the benefit of advocacy services because access to their accommodation is controlled by others. This may be the case, for example, in psychiatric facilities, nursing homes, boarding homes and some private residences.
The act sets out two different levels of entry powers, one for provincially regulated premises and private commercial premises and another for all other premises, which would include private homes.
Provincially regulated premises are defined in section 17 as "facilities," and the act appends a schedule listing the statutes that create and govern facilities.
Advocates have the right to enter a facility without a warrant at any time that is reasonable in the circumstances. Once entry has been accomplished, the advocate is entitled to meet privately with vulnerable persons without interference. It is an offence to prohibit access. If access is refused, the advocate may apply to a justice of the peace for a warrant to compel the operator of the facility to allow access.
The same broad right of entry applies to premises which are operated for remuneration by a person who controls access. That is referenced in section 18. The purpose of this section is to ensure that vulnerable persons who reside in unregulated private boarding homes and rest homes have the same access to advocacy services as those who reside in public institutions.
Stricter rules apply in the case of all other premises, including private homes. Section 21 entitles advocates to enter only between 8 am and 8 pm for the purpose of visiting a vulnerable person who wants an advocate or who they believe may benefit from advocacy services. An advocate must be able to establish reasonable grounds for this belief.
As it is not an offence to refuse admittance to private premises, an advocate is effectively required to obtain a warrant if an occupier of private premises refuses entry. Once the advocate has made contact with the vulnerable person, if he or she indicates that advocacy services are not wanted, the advocate must leave.
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An advocate will have a right of access to records relating to a vulnerable person which are kept by a facility. Access may only be accomplished if the vulnerable person consents, with one exception. If access is necessary to address a systemic problem, consent may be obtained from the commission. Because the Mental Health Act contains provisions governing access by patients to clinical records in psychiatric facilities, subsection 24(3) of the bill prohibits advocates from disclosing the contents of a clinical record to the vulnerable person unless the client's physician consents. Otherwise, the person must obtain the record in accordance with the Mental Health Act.
Section 27 sets out the rules advocates must follow when exercising access.
Section 28 enables an advocate to apply for a warrant to compel access to a record if access is denied in contravention of the act.
As the minister indicated, the act effectively requires that all information acquired by advocates be kept strictly confidential. The act permits advocates to disclose information without a client's consent only in limited circumstances. Such circumstances include a situation where a vulnerable person is likely to cause serious bodily harm to another person, or as may be required in the course of certain legal proceedings.
An advocate is required to disclose information as directed by the client or at the commission's request to an employee of the commission. In addition, an exception applies allowing for disclosure to other advocates, to the commission and to vulnerable persons for the purpose of systemic advocacy. Advocates who breach the confidentiality rules of the act may be subject to prosecution.
You will note that subsection 31 provides that the confidentiality provisions of the act do not apply to information contained in a record in the possession of an advocate who works for the commission. This is because the commission will likely be governed by the Freedom of Information and Protection of Privacy Act if it is designated as an "institution" for that purpose. That act contains its own set of confidentiality provisions, but those provisions only apply to information which is recorded.
Accordingly, advocates who are employed by the commission will be governed by two sets of rules. Information which is recorded will be governed by the Freedom of Information and Protection of Privacy Act. Information which is not recorded -- ie, not documented in some way -- will be governed by the confidentiality provisions of the Advocacy Act. This distinction will not apply to information acquired by community programs or advocates who are employed by these programs and not directly by the commission. This is because they will not be "institutions" under the Freedom of Information and Protection of Privacy Act. As a result, they will be governed solely by the confidentiality provisions of the Advocacy Act.
Section 36 enables the commission, with the approval of the Lieutenant Governor in Council, to make regulations regarding certain aspects of its day-to-day operations, including the establishment of regional offices and the qualifications and educational standards which will be applied to advocates. You will note that clause 36(d) enables the commission to make regulations governing the provision of services to persons who cannot provide instructions to an advocate due to mental incapacity. This authority is included because such persons are often extremely vulnerable to abuse and neglect. Accordingly, certain advocacy services may be deemed by the commission to be appropriate for these persons. The nature of these services and the necessary guidelines can be identified and developed by the commission once it is in place and in a position to give this very sensitive area thorough consideration.
The Chair: Thank you very much, Ms Spinks. Any questions or comments?
Mrs Sullivan: I do have some questions relating to the drafting of the bill that provide some concern. They relate to the fact that the bill provides that regulations will do almost more than what the act itself does. Regulations will define the exact nature of the advocacy services that are to be provided. In fact, there is more time spent in the bill on the compensation of advocates than on the actual services that will be provided by the advocates, and I am very concerned about that.
I am also concerned that guidelines for the determination of mental capacity under section 36 will be defined in regulations, not in legislation. Guidelines for the training and screening of advocates are not included in legislation; that is to be by regulation. Definition of the facility: not in the legislation, but by regulation.
It seems to me that for a vulnerable person, or for people who are associated with that person, the more information that is open and available and clear, and clearly spelled out, the more successful any kind of an approach to advocacy will be.
Indeed, for those of us who are reading the bills as they are drafted now, this bill along with the other two, we find inconsistencies, overlaps and a very confusing array of approaches. If significant portions of the bills are hidden in regulation, surely to goodness, even for people who are not vulnerable or who are only vulnerable for a certain period of time -- and I am thinking of schizophrenics, by example, or people with Alzheimer's who may have specific vulnerabilities at one period of time and fewer at another period of time -- surely this kind of confusion should be cleaned up and information that is highly specific and necessary should be included in the legislation so it can be debated in a public forum and there can be consultation on those issues in a public forum. We know how regulations come about. They tend to be behind closed doors, with little consultation, and frequently do not meet the requirements. I am very concerned about that.
I am also concerned about the sections of the bill relating to the requirement for the advocate to have access to records, including, under section 24, clinical records. If clause 7(1)(b) is indeed what the advocate is intended to do, although we do not know that because we have not seen the regulations, why does the advocate require access to the clinical records of vulnerable people?
Ms Spinks: I will address first the issue of the regulation-making authority.
The commission as is described, particularly through the appointments process and so forth, is very much a consumer-driven body. It is meant to be chosen by, created and driven by the very people it will be serving. It would, I think, effectively defeat the purpose of the legislation to spell out in detail every aspect of the commission's operation.
The commission is doing a fairly novel job. It is not something we have a tremendous number of models for. It will be an evolving process. The commission will have to consult and to determine, as it gets up and running, what the particular needs are for different groups and how it can best serve the vulnerable communities. It is not an oversight that much of the day-to-day detail of the mechanics of running the commission was left for future regulations. It is quite consistent with the idea that the commission should be independent and autonomous.
With respect to access to clinical records, consultations we have had with advocates who are currently operating, both under the psychiatric patient advocate office and otherwise, have indicated to us that in order for an advocate to properly serve a client, it is essential for him or her to be able to get an accurate picture of how in fact that person is being treated. The day-to-day regime of the person's life in an institution is highly regulated, from what he wears to the time he eats, when he goes to bed and what kind of treatments he has and so forth. In order to do the job properly, a person must have information. You cannot advocate effectively without it.
With respect to clinical records, the practice to date with the psychiatric patient advocate office has been that it has had access to clinical records. In fact, I think maybe it has broader access than this act contemplates, and the whole system has worked very effectively.
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The Chair: Anything further, Mrs Sullivan?
Mrs Sullivan: I think Mr Poirier has a question.
Mr Poirier: I have a number of questions, actually. Could you elaborate on that right to access? I am a bit worried about that because of the privacy of the records and whatever, the material for the vulnerable person. I can see interesting scenarios of maybe conflict and whatever in that aspect. Could you elaborate a bit on that?
Ms Spinks: Access to records?
Mr Poirier: Yes.
Ms Spinks: Essentially, the act permits an advocate to have access to records, provided that they are records maintained by a facility. You turn to the schedule in the act to determine whether or not that particular place is a facility. If it is governed under one of those statutes, it is. The access is only to records which relate to the client, not to other people. This act does not provide any right of access to personal information involving others unless it is under very highly supervised circumstances.
Mr Poirier: I guess they come in and ask specifically to see and have withdrawn from the records the information specific only to that vulnerable person.
Ms Spinks: That is right. Our advice is that generally speaking these records are fairly readily identifiable. They are maintained in respect of each particular patient or resident. They will have that access obviously only with the consent and on the instructions of the client. Once they have the information, the confidentiality rules kick in. Those rules constrain an advocate from disclosing what is in there to any other person unless the vulnerable person himself or herself considers the matter and gives instructions to do so.
Mr Poirier: Another point: the formation, skills requirements, training, whatever, of advocates, whether with the commission or with an organization. How about standardization, minimum criteria, qualifications, diplomas?
Ms Spinks: If you look at section 36, it specifies that the commission may make regulations establishing minimum qualifications and educational standards for advocates, so that is the section which will enable the commission to ensure that they are properly supervised.
Mr Poirier: Nothing has been done so far on that, right? You will inherit what you inherit or whom you inherit.
Ms Spinks: No. Once the commission is in place, the commission will decide who the advocates will be. Some of those people may be doing sort of informal advocacy, without the umbrella of this legislation. At the present time they may want to become advocates and will apply to the commission to be so authorized. Obviously that represents a terrific pool of expertise to draw from, but the commission will not be compelled to inherit anything. It can also choose perhaps to give grants --
Mr Poirier: It could end up meaning that some people who are advocates either part-time, full-time or whatever right now could not meet the commission's minimum requirements to be an advocate. Could that not be true?
Ms Spinks: That is correct. If they are operating now and the commission establishes criteria, they would have to meet those criteria. From the consultations we have had, and I do not want to second-guess what the commission would do, I anticipate the commission would probably be looking at a very wide range of backgrounds and so forth so that the criteria it develops would not be so narrow that they would effectively professionalize that role.
Mr Poirier: Not that I am looking for some worst-case scenarios, but another point: I am glad the commission wants to recognize the support of family, friends and whatever. What of the scenario where family or friends have been somewhat of an advocate for a vulnerable person? How does one of your formal advocates with the commission resolve that difference of opinion as to what the needs, the requirements or desires of a vulnerable person are? The debate between one of the commission's advocates or an organization's advocate and an informal advocate from the family, an immediate family member or a friend or relative, how would you resolve that?
Ms Spinks: In order to understand that, the key is to recognize that an advocate does not have decision-making authority. An advocate is not a guardian. In order to have a guardian, one will have to go through the Substitute Decisions Act and all the requirements of due process would kick in.
An advocate, on the other hand, does not have any decision-making authority, and so in that rule they would be attempting to ascertain the wishes and preferences of the vulnerable person but would be doing so on his behalf only if that is what he wanted.
Mr Poirier: If there is an indication from the vulnerable person that he wished to have an advocate -- I am talking about either somebody who may have schizophrenia or somebody who has Alzheimer's, where he is not too clear as to what he wants or what he states or how he states it and it changes from day to day. My father has Alzheimer's and I am getting to be quite --
Ms Spinks: It is a good point. I think you are talking about the capacity to instruct. It may fluctuate and so forth, and it is a complex area. To date, advocates who work in the field have indicated to us that, with experience and with skill, they can interpret what a vulnerable person is telling them. This is not to say that a person may be, for example, capable on all levels of instructing an advocate. An individual who knows and can express his preferences with respect to day-to-day things may not be capable of instructing an advocate as to how he wants certain aspects of his finances managed by a guardian, for instance.
Mr Poirier: Would you operate on that aspect of guardian versus advocate? In layperson's terms, what would the difference be, according to you? Why the legal framework for an advocate, as opposed to a guardian? In 25 words or less, in non-legalese, how would you make that distinction?
Ms Spinks: The reason for the distinction of why there will be a definition in the guardianship legislation and not in ours is that guardians acquire massive legal authority over a person. They have significant power. They replace the individual. In order to get there, they must be carefully scrutinized and the standards must be open to review. That is not the case with advocacy. An advocate is not there to do anything to the person.
Mr Poirier: Not do anything to a person but do a lot for a person. Does that advocate not have some legal powers to do something on behalf of the person, like access the records, access the property? I do not know; I am trying to understand better the distinctions.
Ms Spinks: They do, but I think what you are talking about is where a dispute were to arise, for example, where a service provider says, "I do not believe this client, this resident here, has the capacity to give you consent," and the advocate disputes that. Ultimately, the way the act is drafted, the only way for that to be resolved is before a justice of the peace. If they have different viewpoints, then the resident or the service provider refuses access on those grounds and the matter is taken up and whatever evidence must be called forth in that regard will be called forth at that time.
Mr Poirier: For example, in the case of my father I have a legal document that says I have the power to decide for that person. Could that provide a showdown between an advocate and the person who is the legal person behind somebody who may have Alzheimer's, for example? How would you resolve that difference?
Ms Spinks: Technically I think you are correct in the sense that an advocate may, on occasion, be in conflict with a guardian, but the advocate will be acting on the instructions of the client. Now, the vulnerable person may still have or want some input into what the attorney or the guardian is doing, and that may be very legitimate, or in fact may ultimately want that guardianship removed or changed. An advocate has an important role to play in that regard.
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Mr Poirier: Some of the wording in the act mentions specifically that the advocate may go in there thinking there may be someone who may need the services of an advocate, whereas that vulnerable person, the way I read the language here, may not realize whether or not he might benefit from an advocate. Right?
Ms Spinks: That is true, but I suggest that decision could not be made until the connection between the two individuals has taken place and the powers of entry are framed to enable that to occur.
Mr Poirier: Would not that power of entry also be applied in the case where the vulnerable person may not have had a contact yet with the advocate? What if the advocate thought there was somebody inside there who could benefit from the services of an advocate? Obviously, the vulnerable person may not normally be aware.
Ms Spinks: Then, under the act, the advocate could exercise entry under section 21.
Mr Poirier: And if the advocate finds that the vulnerable person has a person with legal power of attorney or a representative or the family or whatever, would you expect that advocate to respect that, or push it further, or what? I am trying to establish a dispute-resolving mechanism in case there is a conflict of jurisdiction over the vulnerable person's rights.
Ms Spinks: I understand, but I guess that is the key, that the guardian or attorney has jurisdiction over the vulnerable person's rights. The advocate does not have any legal jurisdiction over the individual, so in that instance he would try to determine what the problem is, what the vulnerable person wants done, which may be that the advocate should leave, and in that case he would have to do that.
For example, if the vulnerable person had questions about the administration of the property under the power of attorney or the guardianship, the advocate can play a very facilitating role in connecting with the guardian and determining what has actually taken place, perhaps communicating that to the vulnerable person, clarifying the issue. It is not necessarily an adversarial role.
Mr Poirier: I hope not.
Ms Spinks: In fact, it could be quite useful in situations like that.
Mr Poirier: Right. I am sure it will be very useful in the vast majority of cases. Hopefully we will not see any adversarial situations, but I always like to get ready for the worst-case scenario, because as an individual, if you try to tell the advocate to go take a long walk on a short pier, there are some legal provisions in the act that say no, you cannot.
What would a legal guardian or an attorney, a person with power of attorney for a vulnerable person -- what would happen if you had this type of legal showdown, for example, in the case where a family member, who may not necessarily have a power of attorney or be the official guardian of somebody, has a conflict with the attorney? How would you resolve that?
Ms Spinks: Again, this is client-directed and client-instructed, so the only conflict would be between the wishes of the individual vulnerable person, as perhaps expressed by or through the advocate, and the guardian.
Mr Poirier: But what if that vulnerable person was an advanced case of Alzheimer's that could not verbalize or indicate --
Ms Spinks: Well, that brings us back to the whole question of the capacity to instruct. As I say, the act does not provide for any review board mechanism as does, for example, the Consent to Treatment Act on those issues. The reason for that is that the downside of having that is it creates a tremendous layer of bureaucracy and it also perhaps interferes in a relationship which cannot be very well defined. It is not the same as legal incapacity.
Advocates are accorded a certain amount of leeway in determining whether or not they can take instructions because they have such a lower level -- as a matter of fact, a non-existent level -- of decision-making authority. That is the difference.
Mr Poirier: They can make the decision if they are directed by the vulnerable person, but the more vulnerable the person, probably the less capable of vocalizing or saying clearly what he wants or needs or expects out of the advocate or the legal guardian, right?
Ms Spinks: That is quite true.
Mr Poirier: Obviously that domain is still a bit nebulous as to how we resolve this issue.
Ms Spinks: It is somewhat nebulous. I think all we can judge by right now is the experience of advocates in practice and in the field and they do not report that this is particularly a problem. It is not a problem with family members. It has not been a problem with advocates knowing when they can take instructions and when they cannot.
Mr Poirier: Okay, thank you very much. I hope that is true. If it is not true, then I am sure you will be very willing to look at what you will come forward with to amend it or tighten it.
Mr Winninger: I have two questions relating to sections 24 and 25, access to records. My only experience, by the way, is under the Mental Health Act, but I see that is incorporated into section 24.
First of all, you will undoubtedly have situations where the doctor would prefer that the medical information not be passed along to the patient but rather remain with the advocate. I would ask whether that does not place the advocate in a very difficult position, because I cannot imagine why an advocate would want access to that patient's information unless that advocate can discuss the information with the patient so that the patient can be informed when instructing the advocate. Maybe you can deal with that first.
Ms Spinks: The Mental Health Act provides that where a physician is of the opinion that the contents of the clinical record should not be disclosed, the decision as to whether or not it meets the criteria for that finding has to be made by the review board. In other words, the individual has the opportunity to challenge any decision by a physician that it would be harmful for him to have access to his own clinical record. The Advocacy Act has set up very much a parallel system. What it provides is that where the physician is of that opinion, as he might be if a request were made by a patient under the Mental Health Act, the individual's recourse is to go through the Mental Health Act to gain access to the records, and the advocate could assist him in doing that. But I think you are quite correct: It does place the advocate in a somewhat delicate situation.
Mr Winninger: I can understand why certain competing interests, like public safety or the patient's safety, are counterbalanced against a patient's right to access under the Mental Health Act, but here I think we are dealing with a different thing, because we are dealing with advocacy on behalf of the patient. That may tend to be the paramount concern. But I will be brief. I just wanted to ask my supplementary question.
Section 25, which allows an advocate access to a patient's information where the patient has not received individual services from the advocate and the patient may not be consenting to the advocate having that information disclosed: I just wonder what rationale there can be for proceeding to gain disclosure of the patient's record without even, perhaps, that patient's knowledge that it is being done and certainly without that patient's consent.
Ms Spinks: Under the act the only rationale for accessing records in that situation is for the purpose of systemic advocacy, the reason being that where a systemic problem is suspected, it may involve looking through the records of 20, 30, maybe hundreds of patients or residents, either present or past, to determine what the practices of that institution have been. In that instance, the consent of each and every individual is not required. The reason the act is qualified by stating that consent is not required if the advocate has not provided individual services is because if the advocate has dealt with someone and has acted on an individual's behalf, then it is likely that he knows whether or not he has made the choice to release the records, whereas if he has not provided individual services the advocate would have to perhaps contact numerous people who may no longer be residents, whose addresses may not even be available, and so forth.
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Mr Winninger: I will just conclude by saying that I do see a problem there, where you are sacrificing a patient's personal confidentiality for systemic advocacy. There may be a conflict there.
Mr DeMarco: May I add something to that? It is clear that the act is based on client-instructed advocacy. That is the prime principle and the cornerstone of the act. The activities the advocate undertakes are based on instructions from the vulnerable individual. At the same time, it is the historical experience of vulnerable adults, especially those who are institutionalized, to be subjected to systemic abuses. We have many examples. Our experience in looking at the history of advocacy with regard to the psychiatric patient advocacy office indicates that there is a need for systemic advocacy.
There have been instances within institutions where people have been systematically exploited and abused. Part of that abuse is coercion, making it difficult for individuals to come forward with their complaints of abuse. So while your point is well taken, there is a real need not to throw the baby out with the bath water with regard to balancing the client-instructed aspects of advocacy with the reality of social isolation and coercion that many people who are vulnerable do experience.
Mrs Sullivan: I want to move to the section regarding the makeup of the commission. One of the things that is being discussed in several meetings I have had with organizations representing people who require care, who are vulnerable, relates to the decision to insist that the majority of the commission be representative of vulnerable people rather than including a larger space for people who provide representation for those people already.
We have a number of agencies, community organizations, who are indeed working on behalf of and advocating for vulnerable people in many areas, yet many of the people who may not suffer themselves from a particular illness or disability but who may be a stronger advocate, perhaps, or have more experience in terms of advocacy itself, are not going to be allowed to participate on that commission. I wonder why that decision has been made.
Mr DeMarco: First of all, in terms of description, you are absolutely right: The majority of commissioners shall be people who are or have been disabled. The important point to make there, without neglecting or in any way diminishing the role that traditional social service providers or families have played in the past, is one that people from the community make. That point is that a fundamental right in our society is to make decisions for yourself on your own behalf with regard to your future and your life.
Many people with disabilities historically have come into conflict with traditional care providers, traditional professionals or family members with regard to the assertion of their independence and their right to make decisions affecting their lives. The commission is based on the premise that historically, people with disabilities have been deprived of their rights to make decisions, whether good or bad -- which is a right in our society; to chart your own course -- just on the presumption that they were either incapable or incompetent, say, to undertake the tests associated with everyday life just because they have a disability. The assertion here is that this has more to do with traditional attitudes and stereotypes about disability than it does with the real abilities of the people we are classifying as vulnerable. That is why in the act and in the commission there is an emphasis on community control, but not to the exclusion of other stakeholders or other participants.
Mrs Sullivan: I have a supplementary on that if I can just find the section of the act I am looking for. For several years I worked with the Multiple Sclerosis Society, and I think you have a section that would cover patients who --
Mr Sauvé: I think you are looking for section 15.
Mrs Sullivan: I think maybe subsection 15(2). Just to use the example of that particular association, many of the people who are doing frequent work, including patient care, including advocacy work and so on, do not themselves suffer from the illness but may have had a relative, a friend, and have come by various and different means into participation in that association.
That particular illness is one in which a patient can be going through remission and then into an active stage of the illness. Indeed, the stress of participation for that particular illness for some people may be such that it would be better, if multiple sclerosis wanted to have a voice on the commission, to be represented by someone from the agency who is a known and considered advocate for people with that illness and who understands some of the natures of that illness that translate into other areas of disability. There are many crossovers in terms of needs of people.
I suggest to you that AIDS is another area, and one of the reasons that AIDS is another area is that people die very quickly. So the consistency of representation is also problematic. Schizophrenia is also highly problematic in terms of having people who are actually suffering from the disability participate and use their own voice. I suppose what I am saying is, other voices may be able to speak for those people in a continuing aggressive way on the commission when the disability itself creates problems for people who suffer from specific disabilities. I see that as an issue that should be dealt with. It is one that has been raised by many groups, including people who are themselves disabled.
Mr DeMarco: With regard to the actual formation of the commission itself, there is nothing to preclude the scenario that you have just sketched coming to fulfilment. That is to say, there is nothing in the legislation that precludes the appointments advisory group from nominating someone without a disability. The only provision is that a majority of the commissioners shall be people who have or had a disability. So there clearly is a role.
In addition, to reiterate what the minister said, there is provision through the advisory council process for a role to be played by traditional care givers or professionals. The policy issue is the balance between them, and clearly the legislation embodies the community perspective, which says that part of the disempowerment, part of the vulnerability experienced by people with disabilities, has been their exclusion from the social policy process with regard to the services that are provided to that community.
Over the last 20 years or so, major evaluations of social policy in terms of the effectiveness and efficiency of social policies have put forward the view that efficiency and effectiveness could be improved by increasing the number of consumers involved in the formulation and the delivery or implementation of social services. That is the major policy rationale underlying the content of this component of the legislation.
Hon Ms Ziemba: I just wanted to add to that too. I am sure you are aware, and you have been there before, that in the past commissioners to all commissions have always been appointed by the government of the day. We hope this process will take it back to community groups, irrespective of politics, and take into consideration vulnerable persons, not the politics of the day. So I think this is bringing things back into a real grass-roots level of democracy that we have not seen as yet. I am looking forward to that process rather than the political process.
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Mrs Sullivan: I have another question and I suppose this one will have to be to the minister. Minister, I think everyone would like to know why we are not proceeding with omnibus legislation, bringing together the three acts -- or, I suppose, four or five acts -- instead of proceeding in this way where we have different acts determining where an advocate can move in or should move in, where there is a difference in terms of definition of competence and capability, where there are confusions. Why is there not an omnibus bill that is understandable, straightforward, that people can get a handle on? Why are we dealing with it in this absolutely confusing and inconsistent way?
Hon Ms Ziemba: First of all, just to bring you back to the very beginning, we have listened very closely to community groups. We have been with them for many years in saying that a commission was needed that would represent vulnerable adults and be at arm's length from the political party of the day, which would be able to carry on in a way that would not have the politics of the day keeping them from being true advocates. I think that is one thing that you have to really look at and to understand.
So the commission standing on its own can certainly play a role, totally aside from other ministries, other places, other beings. I think it is a good process that will give vulnerable adults their role to play and will certainly make the commission have strictly a relationship that will not be in conflict and will not be subject to scrutiny that it is not listening to the vulnerable people.
Mrs Sullivan: But when you are looking at the particular three acts, the Consent to Treatment, the Substitute Decisions and this act, what you are seeing are three separate pieces of legislation which must be read together in order for a particular case to be followed. Indeed, if you work out on a chart where you start, where the substitute decision-maker comes in, when the advocate comes in, when the doctor comes in, when somebody else comes in, and if, for example, a person has to be committed to an institution, it is an extraordinarily complicated, overlapping body of legislation.
Why is it not all together in one bill that shows a simple, straightforward flow of where choices can be made by the vulnerable person, by others, what action should be taken for particular circumstances at particular times? This is an absolutely bizarre and confusing way to proceed. Why is it not in one bill?
Hon Ms Ziemba: I am sorry you feel that way. I think what we have, unfortunately, in the situation right now is that we do not have a system in place. What has happened over our society is a system that has developed where vulnerable people have fallen between the cracks. They have been abused, neglected, and we have listened to coroners' requests, we have listened to the Fram report, we have listened to the O'Sullivan report, and we have listened to advocacy groups who have said very strongly that there has to be a place where we make sure that vulnerable adults have a place in our society and are no longer neglected and abused.
This is a very complicated issue. Vulnerability is complicated. It is not a simple statement of fact. So we cannot look at this as if we can come forward with something that would be, as you would say, so uncomplicated. It is a complicated thing.
I think the process we would like to set up is a place and a commission that would make sure it is a non-political place, that there is a commission that is being administered -- I guess it is the old adage -- by, for and with the help of honourable adults. It certainly will not have the political ramifications that could happen if you set up a system where instead the political party of the day is putting their friends in place. I think we have to be looking at these issues in that type of framework.
Having said that, I am sure that as we go forward with deliberations and communities come forward with their suggestions and concerns, there is always room, as we said at the very beginning, to take those considerations into place and to make this act a good act that will certainly take into concern the vulnerable adults.
Mrs Sullivan: My question related in no way to political partisanship in relationship to the setup of a committee. I am thinking of the person who needs assistance, one way or the other way, whether it is in providing consent, whether it is in questioning consent, a determination that is being made about capability, whether it is determining whether one needs a substitute decision-maker on a full-time basis or on a part-time basis. The Substitute Decisions Act provides several alternatives, when and where guardianship could kick in.
Why not one omnibus piece of legislation to deal with the issues that are arising for the vulnerable person? Why three separate pieces when you have to read one to get to the other, when in one bill we do not know what an advocate does, when in another bill, the advocate does some things and in a third bill, the advocate does something else? Why not one piece of legislation?
Hon Ms Ziemba: The advocacy commission is set up mainly, as I have said, to make sure that when the other pieces of legislation are in place that advocates will be there to explain the process to the vulnerable person so that if a vulnerable person does not understand guardianship or does not understand the Ministry of Health Consent to Treatment Act there certainly will be an advocate that could explain that process to the vulnerable person, and the needs of the vulnerable people could then be taken into consideration.
Mrs Sullivan: You said the advocate is there to provide advice about the rights and choices to be made in terms of decision-makers, consent and so on. On the other hand, the legislation says that the advocate can have access to the clinical records to assist the vulnerable person to make that decision. I think those kinds of inconsistencies should be cleared up and could be cleared up through one omnibus approach.
When you look at it, in fact what does the advocate do? What power does the advocate have? How is the vulnerable person empowered by the advocate in terms of decision-making? I just think that is so scattered and conflicting that it is going to cause a lot more problems than it will solve. There is nobody in this room who does not believe that we have to have additional protection for people who are vulnerable. The thing is, why do we not get it right the first time?
The Chair: Just a reminder that the honourable minister will be back after the other presenters to tie in the four bills. Maybe at that time, this line of questioning might be more appropriate.
Mr Poirier: I have two questions. First, if I may take a few seconds, Minister, I commend you on the methodology you have used to assemble the commission, but I would like to remind you there was somebody else before you in government. From my experience in five years, the process of how the people have been chosen to sit on agencies, boards and commissions, you have not invented sliced bread with how you are doing it.
In the past when I personally got involved to choose people in the community to sit on ABCs, the non-partisan approach you are using -- I have seen it before and I am glad you are continuing it -- did not start with the arrival of your government. Then I will close the bracket on that one.
The first question is, would you elaborate on the consultation process you have chosen to put in place for the advice you went and got in the community across Ontario? Could any of you elaborate on who you consulted, where and how, to come forward with this?
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Hon Ms Ziemba: Just to go back, you may be right and I am sure over the 100 years that ABCs were there, previous governments have consulted. However, this is a formal process and all the other processes were informal. This makes sure that the formal process is there for communities to have the input. That is the little difference I meant. It is a little innuendo, I am sure, but I would not want to say that other governments have not; even the Progressive Conservatives I am sure have often gone to community groups and asked for their advice. However, this is a formal procedure and will always have to be there, unless another government changes that formal procedure.
Do you want me to name off the list of names? Or do you want to just have a copy? The consultation record and the process that we have gone through, the Advocacy Centre for the Elderly -- I am proudly wearing their button; Advocacy Resource Centre for the Handicapped; the Council of Ontario Seniors; Easter Seal Parent Advocacy; Justice for Children; Martland Consulting Group, Mayor's Committee on Aging; office of child and family advocacy; Ontario Advocacy Coalition; Ontario Association of Developmental Service Workers; Ontario Friends of Schizophrenics/Michael Cassidy; Ontario Long-Term Residential Care Association; Ontario Medical Association; Ontario Nursing Home Association; Parents Empowering Parents; People First; psychiatric patients advocacy office; PUSH Ontario; the official guardian; the public trustee and York Support Services Network.
On a more informal basis, in every town I have visited, we have met with various groups. I have talked to people informally. We have had larger meetings where people were invited to come and give their opinions and discuss the act informally with us.
You can have a copy of this. It is in the briefing material.
Mr Poirier: Did the material also list the children's aid societies? Did I hear that?
Hon Ms Ziemba: There is something with children, but it is not the children's aid societies -- the office of child and family advocacy and there were others, Parents Empowering Parents and Justice for Children.
Mr Poirier: Did you have hospitals and hospital associations?
Hon Ms Ziemba: Yes, the Ontario Medical Association and Ontario-Long Term Residential Care Association.
Mr Poirier: But not the hospitals per se.
The second and last question I have for the moment: I am going to section 1, the purposes of the act, and section 7, the functions of the commission. If you look at clause 1(d) and clause 7(1)(f), it says the purpose of the act is, among others, "to take into account the religion, culture and traditions of vulnerable persons," and that a function of the commission is "to ensure that advocacy services are provided in a manner that takes into account the religion, culture and traditions of vulnerable persons."
We all know that vulnerable persons, in some cases, will have a mother tongue that is not English, whatever it may be, and will revert to or be limited to that mother tongue that is non-English. What provisions do you see for the act or for the commission to be able to provide services in the vulnerable person's language of usage?
Hon Ms Ziemba: If the advocate does not have those language skills, obviously then an advocate can go out and find the interpreter to provide those language skills, although I would hope that some of our advocates eventually would have some of those language skills as well.
Mr Poirier: Do you see that the commission will have a mechanism in place that if there is a language problem that --
Hon Ms Ziemba: Very definitely. That goes with the native community as well, because I think as we work towards our Political Statement of Relationships that we really must take into account the cultural plus the language differences that we have within the native community as well.
Mr Poirier: Very good. I am glad to hear that.
Mr Wessenger: I would like some clarification with respect to the appointments advisory committee. What I am concerned about are categories 1 to 8. Within each category you could have a multiplicity of organizations. I would like it clarified, when there is a multiplicity of organizations falling under these categories, how it is going to work that they will come up with two nominees.
Hon Ms Ziemba: None of us want to put people in categories and have those categories in place. However, if we are to have a system that is functional and that becomes so large, we had to try to define what those disabilities would be and put them into organizations that would define them. That is how we came to that position. We also decided that since we had a little bit of leeway -- if, for instance, a vulnerability was not included then of course the advisory committee has some room, as well as the minister of the day, to make provisions for adding a group that should be added and put into place.
Mr Wessenger: If I might continue on, let's just take, for example, organizations representing persons 65 years of age or older. You could have 20 organizations within the province of Ontario representing persons age 65 years or older. Supposing each of those 20 came up with 20 different names, are their votes weighted according to the membership? It is just the mechanism I am looking -- I do not think, Minister, it is your position to answer this, it is really for your staff to answer how they would deal with that type of situation. It is a technical question.
Hon Ms Ziemba: It is a technical question. I think we will be facilitating groups to come together and try to nominate people and have the democratic process that works out. But you are right, I think there could be many groups within any category that have that. That technicality will have to be developed and worked on by the staff to make sure there is no concern that perhaps people cannot come to the elective process.
Mr Wessenger: I notice there is a requirement that the majority of the members be disabled, but that would not stop one of the organizations from 1 to 8 nominating someone who did not fall within that category. Is that correct?
Hon Ms Ziemba: That is right. For instance, Mrs Sullivan talked about multiple sclerosis. If the people within that category decided they prefer to have a care giver or somebody who has been advocating on their behalf, that is what the democratic process is all about.
Mr Wessenger: That was my understanding; I just wanted to confirm it.
Mr Poirier: They will call it the retired MPP benevolent fund association.
Ms Carter: First, just a comment. Somebody came to see me in my office today. He was a psychiatric survivor, I guess. He thought all the people on the commission should be people who have been there. There really is a feeling, I think, that only those who have undergone some of these treatments or whatever can really understand what it is like.
How are advocates and vulnerable people going to find each other? In some cases there will be no difficulty, but there might be some and they might be the most severe cases tucked away in a room in some boarding house or whatever and maybe do not even get to see a doctor. Nobody knows they are there and they have problems. Can anything be done about that?
Hon Ms Ziemba: I think it is always a fear that some will fall between the cracks. One of the provisions of the act would be that people who are neighbours or outside the system, perhaps even a staff person of an institution, might feel that if there is the opportunity to call an advocate and they would not have to name themselves they would not get into trouble. I think that is a provision we have to be very careful with and protect, because there could obviously be people who would feel that if they came forward and had to reveal who they were, the ramifications could also hurt them as well. We are trying to make that possibility there. I think that is a very important provision.
However, the case scenario you are talking about always worries me, how we can make sure we reach out. We hope systemic advocates can do that type of work to make sure people out there at least -- we might not know about them individually, but the system will change and will improve because of the systemic provisions brought forward in legislation and regulation. It will change the lives of other people we might never know existed.
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Ms Spinks: One of the reasons the authority to enter is included in the act is for precisely that sort of problem when a person cannot --
Ms Carter: But the person entering would have to have some idea that there was somebody there.
Ms Spinks: Yes, a third-party referral, perhaps a neighbour or someone -- but it is to reach those individuals who maybe cannot make contact themselves.
Ms Carter: Even in a family situation, although I am sure most families are supportive, it is not 100%. There are people in family homes who need assistance.
Ms Spinks: Sometimes families are also in need of information and the situation is that they really do not understand -- it might be language or other reasons -- that there are systems or services in place where they could get assistance and help. The call of somebody else going into a family situation could actually support and help the family get the services they need so they are not under duress and stress and can get the assistance.
Mr DeMarco: Clause 7(i) of the legislation charges the commission with the necessity to conduct programs of public information and education, which is part of the issue you raised. At the same time the commission is charged with utilizing community development strategies. If any type of strategy is designed to get people out of offices and on to the street and to increase the likelihood that those who might fall through the cracks through traditional systems are located and helped to connect with organizations -- and to further that, since the commission is charged with enhancing mutual aid, connecting with existing organizations -- we think that overall, the likelihood of people falling through the cracks is very much lessened through the framework for the commission and the types of strategies there to employ than might be the case with other types of social service intervention.
Mr Poirier: To go a bit further with Madam Carter's intention, if staff or someone would call an advocate and identify themselves, obviously that type of information, the identity of that person, would be protected. So there is no way, even if they do identify themselves --
Hon Ms Ziemba: Even if they did they could be protected. However, if they did not want to identify themselves they would not have to. It would be taken as a serious call rather than just somebody making a prank call.
Mr Poirier: There is legal protection whether they identify themselves or not.
Hon Ms Ziemba: Yes, absolutely.
Ms Carter: Sometimes it might be obvious; there might be only one person dealing with that person. Then we would need some kind of whistle-blower protection for them.
Hon Ms Ziemba: That is in the act itself. The confidentiality provisions apply to any information acquired in the course of an advocate's duty.
Mr Poirier: Fair enough. I just wanted to make sure of that. Thank you.
Mr Winninger: I want to return briefly to a comment, I believe made by Mrs Sullivan, in regard to why we have three acts instead of one act. I think the public should be reminded that there is already great economy in these three acts because, to make up the Substitute Decisions Act we have taken the Powers of Attorney Act, the Mental Incompetency Act and the Consent to Treatment Act. We have taken the provisions from the Nursing Homes Act for consent to treatment, the Public Hospitals Act, the Mental Health Act and I know advocacy has also taken provisions from the Mental Health Act as well. So I can think of six acts, in a sense, that have been brought together in three acts. I suggest there is great economy achieved there.
Mrs Sullivan: So let's get one. Let's integrate more.
Mr DeMarco: May I make one point by way of clarification? The Advocacy Act could be characterized as a civil rights bill for people with disabilities. Clearly many of the difficulties people with disabilities have experienced in terms of social services have primarily been with the issue of competency and guardianship. Some have been presumed incompetent when in fact they were competent but could not communicate, had other difficulties in living in the community, or difficulties with physicians and the medical system -- the tendency to medicalize problems that are social in origin.
I think it is important to note that while the Advocacy Act deals with vulnerable adults, those defined as having moderate to severe disabilities, the Consent to Treatment Act and the Substitute Decisions Act are broader and more generic. The Consent to Treatment Act deals with consent issues for you and me as well as provisions dealing with people who are vulnerable. Provisions of guardianship and substitute decision-making entail provisions in terms of specifying power of attorney if you become incompetent in the future. There is a generic quality to the other two acts that is broader than the relationship to vulnerable people which makes the situation more complex than it might be if we were just dealing with people who are vulnerable.
Hon Ms Ziemba: I want to make one more comment if I may -- and I do not want to take too much time -- but it is also the checks and balance. If we had it all under one particular umbrella act then we might have a problem with people who have their guardianship being imposed and an advocate also working under the same act. Is there a check here and a balance or is there a conflict of interest? It is really necessary to have one bill that is an arm's-length relationship to ensure that people's rights are not being taken away unnecessarily and to protect their rights.
Mr Sauvé: If I could add one final point on this issue, that throughout the development of these initiatives -- and this goes back a number of years -- there has always been a tripartite working group working very closely on all these issues from the Ministry of the Attorney General, the Ministry of Health and the Ministry of Citizenship, ie, the Office for Disability Issues. As this has evolved, particularly in the last 18 months, these three parties were working very closely together. The legislation, as a matter of fact, was drafted by the same individual, so in so far as there is complementarity and linkages between the three pieces of legislation, I think they have been made. They are related but they are distinct as well.
The Chair: Thank you, Mr Winninger, even though most of the responses went to Mrs Sullivan.
Mr Malkowski: You do not have to answer my question but maybe staff would be better answering it. It is important to remember to respect the rights and wishes of the disabled person, and we have the different categories. It is important to clarify the role of the advocates so they do not take the rights from the disabled person. I think that is important. We have to clearly define those three bills -- that is the point I wanted to make -- so they do not lose their rights.
Mrs Sullivan: I want to pursue once again a thought from Mr Poirier's question. It struck me that the facilities governed under the Advocacy Act include the list included on the back of Bill 74. I notice that health care, patient care or residential care provided in a home setting or a non-institutional environment is not included. I also noticed that when you were reading your consultative list a lot of these sectors were not included in your consultative agenda.
The other thing is that, as you look at the facilities in the Advocacy Act the advocates have special power of entry, access to documents, and seeing the vulnerable person. In the Consent to Treatment Act a very different route for the advocate comes into play. It includes very different settings defined in this act. It includes health practitioners who are not included in this act. The Consent to Treatment Act applies to every practitioner -- I suppose now, because it would be amended, there is provision for amendment -- under the new Regulated Health Professions Act. This does not. There is a specific schedule of access.
I suppose what I am saying is that is inconsistent between those two acts. If the same person wrote these acts, I guess he did not have the right chart up on the wall. As well, there is a very different definition of when vulnerability and incapacity kick in. Who makes the judgement? Can you tell me how you come to terms with those varied differences in approach and definition? Why was the consultation not done that includes all the institutions as well as home care deliverers who are in fact going to be affected by these pieces of legislation?
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Ms Spinks: If I could just comment, all three acts are addressed to related but quite distinct issues. Under the Consent to Treatment Act, I think you are referring to the wide scope of health practitioners who fall within the category that must follow the rules regarding informed consent and the appointment of substitute decision-makers and so forth. I think that the role of the advocate in that legislation is really quite clear. It is quite well defined, among other things, in section 10 of that act. I do not see any conflict with this.
The definition of "facility" is referenced in section 16 or 17 in order to kick in the access to record provisions and so forth that are not necessarily applicable to the function that an advocate is performing under the Consent to Treatment Act or indeed under the Substitute Decisions Act with relation to guardianship. They are related but they are in fact quite distinct. What this does is to cover the scope that is necessary for the provision of advocacy under this act. I think the other acts are really quite specific in their own right.
Mrs Sullivan: Let me give you an example. Under the Consent to Treatment Act dental technicians, for example, are included. Under this act, providing power for the advocate to have access to the premises, to see the particular individual on the premises of the facility, the Consent to Treatment Act indicates that the advocate has to come in if a health practitioner defines that person as incapable, yet in the Advocacy Act you do not allow or you do not specify that one of the facilities to which the advocate has access is the dental office.
Ms Spinks: I think the provisions of the Consent to Treatment Act look after it.
Mrs Sullivan: No, they do not.
Ms Spinks: They in fact require that the patient be advised of the right to meet with the advocate. It is also an offence to restrict that relationship. I think that leads to a right of entry, in effect. The physician or the health care practitioner who is making that finding is obliged to facilitate that meeting.
Mrs Sullivan: I suppose to a certain extent we are going back to a question I think was asked earlier relating to access to confidential information and clinical records. If a person is vulnerable and has been described, defined, judged, to be incapable by a health care practitioner certain things kick in. One of the things that kicks in is that the patient has to be informed of his right to an advocate. The advocate is brought in to define where that patient should go. That happens in various scenarios under the Consent to Treatment Act.
Under the Advocacy Act it happens in different scenarios. There are different rights for the advocate to have access to clinical records. If the advocate is there to explain rights, in many situations, if the patient is, say, schizophrenic and decides in a dentist's office that the dental technician who has made the diagnosis, if you like, of incapacity should not have made that diagnosis, is the advocate going to respond in the same way in that circumstance under the Consent to Treatment Act as the advocate will respond under Bill 74, the Advocacy Act? It appears that there are different functions and roles for the advocate in different circumstances.
Ms Spinks: I think to some extent that is true, but that would not preclude the advocates from acting on behalf of that individual if they wanted.
Mr Sauvé: There are three types of advocacy.
Ms Spinks: Yes, the roles are very distinct in relation to each type. Section 10 of the Consent to Treatment Act is very specific as to what job the advocate has to do.
Mr Sauvé: I think we have to remember too the three distinct types of advocacy. What would happen largely under your example in terms of the consent to treatment is that it would be strictly rights advice as opposed to the other two types of advocacy that are envisaged under the act, the individual advocacy and the systemic advocacy, which require these rights of entry and access to records and so on to those institutions that would be specified in the schedule. In terms of just providing rights advice, telling persons that they have the right to either accept or reject this course of treatment or whatever their options are, it is quite a different kind of activity than the other two types of advocacy that are envisaged in the Advocacy Act.
Mrs Sullivan: The rights advocacy in both those cases is inconsistent. Between the one act and the other act, there is an inconsistency in what the advocate has the authority and responsibility to do as an advocate for the patient's rights and an information source.
Ms Spinks: What specifically do you see as inconsistent?
Mrs Sullivan: I see the rights to entry, and the involvement of access to warrants as being quite different.
Ms Spinks: Again, they are very different functions.
Hon Ms Ziemba: For rights advice you would not need a warrant.
Mr Sauvé: No. Clause 7(1)(d) of the Advocacy Act, which says "provide advocacy services as required by any other act," eliminates any discrepancy between the consent legislation and this particular legislation. Why I think clause 7(1)(d) does not specify "provide advocacy services as required by the Substitute Decisions Act and the Consent to Treatment Act" is because the advocacy legislation was introduced for first reading on April 18, and the other two bills were only introduced two or three weeks or maybe a month later. It is impossible, according to the advice we got from the legislative counsel, to refer in an act to acts that have not yet been introduced. That is why that language would be "as required by any other act." I presume, as we go through this process, that this clause will be amended to specify the other pieces of legislation that would be applicable in this case.
Ms Spinks: I think they all work really quite well together, but as I understand it we are having a briefing at the end, after each of the acts has been presented, which will tie the three pieces of legislation together.
Mr Sauvé: And the charts.
Ms Spinks: The various languages and so forth will be explained maybe a little more clearly at that time.
The Chair: Thank you. Noting the lateness of the time, Mrs Sullivan, any further questions? You have one more question.
Mrs Sullivan: I do not have any more.
The Chair: One further question, Mr Wessenger.
Mr Wessenger: I am just wondering why correctional facilities are not included on your schedule. You could have vulnerable people in a correctional facility.
Hon Ms Ziemba: It is included in the act, though.
Ms Spinks: It is in the schedule in the Ministry of Correctional Services Act.
Mr Wessenger: So they are in the schedule. Police detention facilities is what I was thinking of.
The Chair: Thank you, Mr Wessenger. On behalf of the committee I would like to thank the minister, Ms Ziemba, Ms Spinks, Mr Sauvé and Mr DeMarco for appearing before the committee. We will adjourn until 3:30 tomorrow.
The committee adjourned at 1800.