POWERS OF ATTORNEY
AMENDMENT ACT, 1990
NATURAL DEATH ACT, 1990
MINISTRY OF THE ATTORNEY GENERAL
CANADIAN BAR ASSOCIATION -- ONTARIO
CONTENTS
Tuesday 28 May 1991
Powers of Attorney Amendment Act, 1990
Natural Death Act, 1990
Ministry of Health
Ministry of the Attorney General
Canadian Bar Association_Ontario
Committee budget
Adjournment
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair: White, Drummond (Durham Centre NDP)
Vice-Chair:Morrow, Mark (Wentworth East NDP)
Carr, Gary (Oakville South PC)
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)
Wilson, Fred (Frontenac-Addington NDP)
Winninger, David (London South NDP)
Substitution: Owens, Stephen (Scarborough Centre NDP) for Mr F. Wilson
Also taking part: Sterling, Norman W. (Carleton PC)
Clerk: Freedman, Lisa
Staff: Swift, Susan, Research Officer, Legislative Research Service
The committee met at 1557 in room 151.
POWERS OF ATTORNEY AMENDMENT ACT, 1990
NATURAL DEATH ACT, 1990
Consideration of Bill 7, An Act to amend the Powers of Attorney Act, and Bill 8, An Act respecting Natural Death.
The Chair: I call this meeting to order. We are here this afternoon to start with the first day of hearings in regard to Bill 7, An Act to amend the Powers of Attorney Act, and Bill 8, An Act respecting Natural Death, both of which were sponsored by Mr Sterling, who will be speaking to them first.
Mr Sterling: Thank you very much. I am going to be rather brief because the Minister of Health would like to make her presentation very shortly.
I want to thank the committee for putting aside the time and putting forward the necessary resources to advertise these two private member's bills, Bill 7 and Bill 8. I truly do appreciate that. I understand from the researcher and the clerk that over 80 different individuals and groups have responded to these acts. Therefore, that shows the interest in these two bills.
Advances in technology and medical science are such that life can now be prolonged almost indefinitely, but many people do not wish to be kept alive by artificial means when there is no hope for the future. I believe that individuals should have some say, some control, over what will happen to them in a medical sense and that these decisions should be made by the individuals when they are competent; that is, when they have their senses. These decisions right now are made by care givers or family members when patients can no longer speak for themselves.
Two Canadian provinces, Quebec and Nova Scotia, already have some laws recognizing the durable power of attorney and a living will. Also, 41 American states make provision for living wills and 50 for powers of attorney.
It is important to understand that these bills do not change our existing laws as to what a person can or cannot do with his life. Presently, any person who does not want to receive medical treatment can have such treatment terminated. Bill 7, An act to amend the Powers of Attorney Act, only transfers this right to another person and Bill 8, An Act respecting Natural Death, allows a person to state to the world the conditions under which he or she would want treatment terminated. This is referred to as a living will.
I would hope that the introduction of government legislation by the Attorney General and the Minister of Health yesterday will not weaken the importance of these public hearings. I would like to be able to assure those making submissions that their knowledge and opinions put forward would not be lost and that they will be transferred and fully considered if, for any reasons, these private members' bills are not called for third reading. This is the first time in Ontario that there has been an opportunity for a public forum, public debate, whereby people will have the opportunity to express their opinion specifically on this kind of issue. It is a very sensitive issue.
At the time Bill 7 and Bill 8 were debated in the Legislative Assembly, Premier Bob Rae indicated to me his full support for this kind of legislation, as did all three parties of this Legislature, and I want to thank each and every member of the Legislature for his support.
I have indicated my willingness to entertain amendments to improve the legislation. Many of the deputations have already presented me with many good ideas for improvement. I believe there is a real opportunity for members of this committee to participate in bringing about meaningful change, change that will enhance our quality of life.
Back in 1983, when I was Provincial Secretary for Justice in Mr Davis's cabinet, I carried an amendment to the Powers of Attorney Act which enabled people to give their power of attorney over to someone else in the case of mental incompetency. However, these past changes dealt only with assets or business matters, property matters. Bill 7 and Bill 8 provide the same kind of protection that your opinions and choices will be honoured even if you become incapacitated, but deal with the rights dealing with medical treatment.
I believe most people fear death far less than they fear the loss of control over their existence. They fear a loss of autonomy. This is something which often comes with increasing years, with illness or purely by accident.
Individuals should have some control over the quality of their lives, particularly if that life is dependent upon artificial means. Being able to make these decisions when one is capable of doing so will provide comfort and a certain sense of security to individuals, to families and to the medical professions. I believe Ontarians should be granted the freedom to make their own decisions on their future health care.
The public will no doubt be somewhat confused by the introduction of bills yesterday by the Minister of Health and the Attorney General. The Legislature really has two options at this point in time: (1) to embody the concepts of Bill 7 and Bill 8 in the government legislation which was introduced yesterday or (2) to use those parts of the government legislation which are attractive to the committee and incorporate them into Bill 7 and Bill 8.
It is my understanding that the Attorney General and the Minister of Health will be comparing and corresponding sections of their legislation with Bill 7 and Bill 8 during their presentations.
I believe that for the present time we should take option 2. If option 2 was the final decision of the government, it would then be necessary for the Attorney General and the Minister of Health to delete from their legislation matters dealt with in Bill 7 and Bill 8 in a later committee hearing when considering their legislation.
The reasons I think we should continue on the path in dealing with Bill 7 and Bill 8 are as follows. First of all, the Legislature has given second reading to Bill 7 and Bill 8, which is not the case with the government legislation. Second, the standing committee on administration of justice is now charged with considering Bill 7 and Bill 8 and, most important, the committee has invited the public to comment on Bill 7 and Bill 8. It would seem unreasonable at this time to back away from carrying on with Bill 7 and Bill 8.
If in the final analysis the government decides to pass its bills into legislation -- or in essence choose option 1 -- it can do so by just leaving Bill 7 and Bill 8 on the order paper until the end of our session to be called for third reading. Then they would -- pardon the pun -- die a natural death.
I would, however, like members of the committee and the government to keep an open mind as to which route is best for the public of Ontario. Quite frankly, I am not certain which tack is better at this time.
I have always believed as a legislator that laws should be written for the people and not for lawyers and judges to interpret. This is sometimes difficult to achieve because of the necessity to use unfamiliar language, sometimes called legal jargon, and because certain sections of a piece of legislation might intermingle with or rely on other sections of the same bill or companion legislation.
Bills 7 and 8 were written for the average Ontarian and were intended to stand on their own. I thought that Bill 7, An Act to amend the Powers of Attorney Act, would be an addition to the existing act, which is in every lawyer's right-hand drawer. I envisage that Bill 8, An Act respecting Natural Death, will be the additional basic piece of legislation kept in that right-hand drawer and on the shelf of every public library.
Therefore, it may not be in the public's best interest to bury the concepts of a living will and a durable power of attorney in a Substitute Decisions Act, a Consent to Treatment Act or a capacity statute law. It may be of interest to the public to have living will legislation stand apart and on its own. This is an issue which I think we should think about during the hearings. Ultimately, it will be decided by the government, as it has the ultimate power in dealing with my legislation.
Some might think I would be upset with the introduction of the government bills yesterday. I tell you most sincerely, I am not. It is the end result that I am concerned about. I want to personally thank the Attorney General and the Minister of Health for introducing their legislation yesterday. It would be unfair to this committee and members of the Legislature for us to operate in a vacuum. I believe we can focus discussion on issues and use the knowledge of both pieces of legislation to find the best means of permitting Ontarians the freedom to make their decisions for themselves with respect to health care.
The Chair: Thank you very much, Mr Sterling. Can we forgo initial statements on this matter and allow the minister to speak?
Mr Mills: Sure.
MINISTRY OF HEALTH
The Chair: I would like to welcome Frances Lankin, the Minister of Health. As soon as you are ready, Ms Lankin.
Hon Ms Lankin: I have with me Gilbert Sharpe from the Ministry of Health, who will be of assistance, I am sure, if there are questions with respect to the consent legislation that was tabled yesterday.
Let me start off by making it very clear that I applaud Norman Sterling's efforts to bring these very important matters regarding personal rights to the attention of the Legislative Assembly. It is a very important initiative and one in which he has had a long-time dedication, a personal and a political commitment.
I think we would all agree that we live in times when each of us is acutely aware of the need to have control over our lives, and respect for the dignity and autonomy of the individual is a goal we must all strive to achieve.
The principles embodied in Bill 7 and Bill 8 are very important ones. I am, however, concerned that the scope of these bills is too limited, that they do not offer proper protections for personal autonomy and that they do not provide a comprehensive system of checks and safeguards offering the widest range of considerations for people's needs and rights as patients.
I appear before this committee having only yesterday, as you are all aware, along with my colleague the Attorney General, introduced bills that do regulate consent to health care and substitute decision-making. The government announced in December and reaffirmed in April that it would be bringing forward such legislation. In my case, it was the Consent to Treatment Act and, in the Attorney General's, the Substitute Decisions Act.
These bills not only embrace the principles of Bill 7 and Bill 8, they go far beyond in ensuring proper protection for individual rights. Both the substitute decision-making and consent to health care legislation were developed meticulously over time, with care and attention to detail.
The content of both reflects a broad consultation, both within and outside government. Both are components of a larger package, the third part being the Advocacy Act, which was introduced 18 April by my colleague Elaine Ziemba, Minister of Citizenship. Together, these three legislative elements make up a complementary whole that will offer full consideration for as many of the nuances of patient rights as we could discover.
Before I describe for you briefly the highlights of the new Consent to Treatment Act, I would like to reiterate that there has been a very complex and exhaustive process under way in government for a number of years to prepare this legislation. It certainly pre-dates the interest of this particular government and the public interest. The Legislative Assembly's interest has been long-standing.
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We believe that each element is part of an interlinking system to protect people legally, to act for them responsibly and to ensure accountability for patient rights in our health care system.
They will help us ensure that across our province, wherever health services are provided, people will be able to make well-informed health choices, including living wills. Further, this legislation ensures that the rights of the most vulnerable members of our society will be fully protected.
The consent to treatment legislation we have proposed does, for the first time, very clearly define the rights and responsibilities of health service consumers and practitioners as well as substitute decision-makers.
Until now, no legislation has dealt clearly and comprehensively with consent to health services. Previously, both the Mental Health Act and the Public Hospitals Act contained some consent provisions for patients in hospitals. Outside of the institutional setting, no specific legislation governs consent.
This is a serious consideration as the health care system evolves into one based more on community health. We now have no consent provisions for community health settings or for long-term care settings such as nursing homes, nor is there, at the moment, anything governing consent in one's own home.
In other health care settings, what prevails in consent situations is common law. Common law rulings stemming from court decisions are not widely known and it is extremely difficult for the ordinary person to enforce his or her rights through common law.
So the new legislation introduced by the government yesterday, by replacing earlier consent provisions in other acts and by ensuring consistency across the province, answers our very real needs, needs for clarity and consistency that have been articulated to us by consumers, providers and interest groups. In creating our three-part legislative practice, we have attempted to respond to their suggestions.
In essence, the new Consent to Treatment Act affirms everyone's rights to be fully informed when making a health care decision, enables anyone to express advance wishes on health care as in a living will, and specify much more than just what would be refused in the case of terminal illnesses. It also ensures that decisions made on behalf of mentally incapable people are responsible and respectful of their rights.
In preparing this legislative parcel, we were able to draw on the model of experience that played out as we made amendments to the Mental Health Act in recent years. In the legislation introduced yesterday, we have included many statutory rules on consent to treatment in psychiatric facilities, including defining mental competency to make treatment decisions.
Others are: consent must be informed and voluntary; provision of authority for a family member to make substitute decisions for a mentally incapable patient when there is no court-appointed guardian; provision for a person to appoint a substitute decision-maker in advance and the option of placing conditions on the decisions made by that person; provision for a public official -- the official guardian -- to act as a substitute decision-maker of last resort; the right of review by an independent review board of a mental incapacity finding; written notice of the right of review to a patient found incapable, reinforced by a program of independent rights advisers who visit such patients; many due process protections for patients in the review process, such as the right to all information that is before the review board, the right to a hearing, and the right of appeal to court from the decision of a review board.
I have two reasons for mentioning these elements of the Mental Health Act. One is that there was a considerable amount of work and effort put into details of the act at the committee stage by members of this government. Their input broadened and strengthened the content of the act. The other reason is that the process was a learning curve that helped to shape this recent consent legislation, ensuring the full consultative undertaking in its development.
So, to reiterate, what exist now are extensive provisions respecting consent to health services in the Mental Health Act, very limited provisions in the Nursing Homes Act and regulations under the Public Hospitals Act. These provisions apply only to the health care setting specified in each act and are not consistent from one act to another.
A health service provider or a patient may be subject to differing rules of consent depending on the health services being provided and the setting in which the health services are given.
The Mental Incompetency Act, the rarely used existing statute for guardianship, provides for court appointment of a committee for substitute decision-making, but it does not deal specifically with health care.
In addition, the provisions in most of these acts do not adequately address the issues that arise when consent to health services is required for an individual who is mentally incapable or for a child. As well, questions arise about ensuring that patients will be informed of their rights and then ensuring that those rights are protected.
The need for comprehensive and consistent legislation on consent to health services continues to exist. The importance of such legislation and the need for it was once again raised during discussions over the past several years on proposed reform of guardianship legislation.
Concerns about liability have led to situations where health care professionals hesitate to examine or treat patients who need health services. Consent to health services legislation is necessary to improve the delivery of health care by establishing clearly the rights and responsibilities of patients, health service providers and substitute decision-makers.
That is some of the background and the comprehensive new directions that we are taking in the government's approach to advocacy, consent and substitute decision-making. That brings me to an examination of the specifics of Mr Sterling's proposed legislation.
I believe we can all agree that the paramount principle of any consent to treatment legislation should be the inviolability of the patient's rights and his or her autonomy. Legislation must provide safeguards for the rights of the relevant players while also balancing concerns about the ethics of life termination or withholding treatment. Similarly, the legislation must be broad enough to ensure the patient's wishes are respected as closely as possible, while still permitting alteration in the event of unforeseen medical advances or changes in the patient's condition.
One of the central issues in consent legislation is the rights of the patient when he or she is incapable. The area of living wills raises this problem. Once a patient is deemed incapable, the role of advocates, substitute decision-makers and review boards come into play in our legislation. Therefore, by necessity, any legislation dealing with living wills must acknowledge and define these players' roles and rights and complement a package of related legislation governing these persons.
Bills 7 and 8 have been successful in highlighting the importance of the need for legislation on living wills and consent to treatment in general. However, the bills do lack a number of essential safeguards to ensure the protection of the patient, other relevant individuals and concerns of the committee members.
Let me briefly spell out what we consider to be the major shortcomings of the Natural Death Act.
Its provisions affect terminally ill patients only and ignore the permanently unconscious -- an example is the Karen Quinlan case -- people who are temporarily incapable of making a health care decision or people who have become permanently incompetent. These limitations are far too restrictive.
It seems to come into effect when it enters into the physician's domain. Such a document should only take effect when a person is declared incapable.
This act ignores other health professionals who may in fact be the only ones at the scene when the terms of a living will first come into play.
The most recent wishes of a patient do not take precedence over the contents of a properly executed living will unless the living will is first properly revoked. In other words, if you have changed your mind, if you are in a situation where you have indicated to family, friends or relatives that there has been a change in your feeling about this and then all of a sudden you are unconscious or you are incapable, this legislation is completely inflexible in dealing with that situation. If you have told your relatives, they have no standing. This is despite the fact that the kind of person who is most likely to be available in an emergency is a relative.
There is no role for a substitute decision-maker or advocate, and they are important players in health care decision-making and the protection of patients' rights.
No provision has been made to set up a review board to consider what you could call tricky cases; for example, where a living will is vague or not exactly on point or where the illness is now curable and the patient is unable to express his or her wishes and thus not able to change a living will.
Once invoked, there is no way to deviate from the terms of the living will to accommodate medical or technological advances.
There is a significant failure to provide a way for a person who has been declared lacking in capacity to challenge that declaration.
It ignores the rights of mentally competent people under the age of 18. They should have a say about their future treatment if they become incompetent.
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To place the shortcomings of Bills 7 and 8 in juxtaposition with the benefits of the legislation introduced yesterday, let me point out that the Consent to Treatment Act contains several provisions protecting the incapable patient. These safeguards are extremely important because of the sensitive and complex nature of the legislation.
Procedural safeguards include the advice to a patient by an advocate of the effect of the finding of incapacity and the right to apply to the review board.
More recent wishes or instructions with respect to treatment apply.
Consent on an incapable person's behalf provides that a substitute decision-maker must give or refuse consent in accordance with the wishes of the incapable person. If no such wishes are known, the substitute decision-maker must act in the best interests of the incapable person. Various criteria to be considered when determining the best interests of the person are set out, including the potential benefit or lack of it arising from the proposed treatment and the patient's value system.
There is provision for advance instructions consenting to treatment to come into play when a person becomes incapable. In addition to refusing certain treatment, the incapable person may also specify that a particular treatment is acceptable. This applies to all health care, not just to termination of life.
I have not detailed all the provisions in the act, but I would like to mention, in wrapping up, a number of features of the review board.
As specified in the act, the review board may clarify instructions or wishes of an incapable person at the application of the substitute decision-maker to ensure that the person's best wishes will be honoured.
A substitute decision-maker can apply to the board for permission to consent to a treatment, even if this is contrary to the wishes of the incapable person, based on what the person would likely wish now. This is very important. It permits treatment because of medical advances not in existence when the wishes were first expressed.
The review board provides procedural safeguards in situations requiring an advocate to meet with the incapable person and explain his or her rights.
The current review board system under the Mental Health Act will be expanded to apply to all health care settings and services. Both this added protection and the expanded role to be played by advocates are essential safeguards to ensuring individual autonomy and protection.
These, then, are examples of the very difficult and intricate mechanisms that must be established to balance the rights and responsibilities of individuals in circumstances where they are no longer capable of speaking for themselves.
As I said earlier, while decisions in living wills about terminal illnesses are an important facet of our legislation, it is but one example of what has become known as advance directives for making decisions about one's own health care.
I want to once again compliment Norman Sterling for bringing these important matters forward. His determination has culminated in the committee hearings, which will forward the discussion and the debate on the subject and provide valuable information for all parties involved in the issues.
If I could just momentarily deviate from the text before you, I will say in response to the comments that you made that I think it is important that the legislation was tabled in advance of these hearings and that we fully intend to take advantage of the information that will be brought forward in response to the bills that you have set out. The groups that have indicated and.expressed desire to comment on these points I am sure will take into account some of the concerns and balances that we have raised, because many of those reflect the consultations we have had with those various groups. I think the kind of informed discussion that will go on here at the committee will be very helpful to the government with respect to not just this piece of legislation but the Attorney General's legislation that he will be speaking about next.
I want you to know that members of the staff from the Ministry of Health will be taking very careful note of the proceedings over the next several weeks, and I have asked to be briefed on the presentations day by day as they unfold.
Our ultimate goal, and I think this also speaks to what you raised in your introductory comments, Mr Sterling, is to provide the best set of circumstances to safeguard the rights of the individual in a health care setting. It is not in any sense a partisan battle of whose legislation gets passed first. It is a matter of putting together the best piece of legislation that will cover all of the rights and the interests in these circumstances.
As I have indicated, I thank you for the work you have done on this issue. I hope that, together with the discussion that comes in response to your bills at this committee, our comprehensive legislation will he able to be on the books within the next year.
The Chair: Thank you, Ms Lankin. Perhaps you would not mind staying for another 10 minutes for questions. Mr Sterling.
Mr Sterling: Thank you very much for coming to the committee. I appreciate the importance you give to these two private member's bills. Your act, the Consent to Treatment Act, does not specifically deal with the advance directives, that is, a living will or a power of attorney, but somewhat sets the stage for those two documents, as I understand the Attorney General's legislation, which he is going to talk about in a few moments. Is there any reason why Bill 7 and Bill 8 could not be amended to dovetail into your legislation?
Hon Ms Lankin: I think I will also ask Mr Sharpe to join in and to clarify and perhaps provide you with a fuller response. You are quite right that there is an intricate relationship between all three pieces of legislation and that the formalized procedure for the living will rests within the Substitute Decisions Act. The Attorney General will be speaking to that next on your agenda.
Much of the groundwork is set within our legislation in the sense of the directives to health care givers in what they must respect: the issue of advance directives, the ability to have some flexibility around a concrete, written document and what might happen in the meantime if there is a change of mind, so I think there are very important links; I think also with respect to the process of appeal and the review board and many of the things that are set out there that deal with issues that are fundamentally important, not just with respect to a living will but advance directives with health care in the case of temporary incapacity, for example. It is important that those be worked in.
Mr Sharpe: The only thing I might add to what the minister says is that the consent bill in section 13 does deal with the advance directive concept, and of course the important issue of autonomy and respecting one's wishes must be embodied in both statutes. The Substitute Decisions Act is referred to in subsection 13(1) of the consent bill. I realize the consent act may not be in front of all of you, but that is where the substitute decisions personal power of attorney is brought in.
Subsection 13(2) goes on to talk about how wishes with respect to treatment expressed more recently would override the actual personal power of attorney that might formalize a living will, but in subsection 13(4) the provision says that wishes with respect to treatment may be written in the prescribed form, so the whole notion of advance directives, as the minister has indicated, could be embodied in a form under the consent act, which might be specifically addressed to just the terminal illness phase, but it also might be much broader.
For example, a patient suffering from chronic schizophrenia who does not want a certain type of anti-psychotic medication -- he does not like the side-effects -- when he is out of hospital and able to do so, might want, under the consent act, to express his wish in advance that if he is rehospitalized, he does not want that medication. So it is a broader concept, but one also could restrict what one says in the form under the consent act to living-will-type circumstances, with all the added protections the minister has referred to.
Mr Sterling: I guess my only concern is that I know a lot of people have looked at this and the rest of it, but at some point lawmakers have to consider as well the simplicity of the concept they put forward. My concern is that by meshing so much together, are we in fact taking away from the people the understanding of what normally would happen in normal circumstances, and that is, you go to your lawyer, you draw up your last will and testament, you draw up a power of attorney to deal with the situation when you are out of the country or should you become incompetent. The lawyer also says to you, "Do you want to draw up a living will and do you want to extend your power of attorney for a situation where you would not be able to give direction as to your medical care?"
By meshing it into a very complex piece of legislation, are you going to encourage or discourage people to take the step -- that is one concern I have -- or understand what these documents do? Because as you complicate the process, sometimes you defeat the process as well. That is my only concern. I do not take away from the intent of trying to cover every situation, but as a lawmaker you cannot always cover every situation.
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Hon Ms Lankin: I think that is a very valid concern and I am sure people will address that through the course of the committee hearings.
What I hope in fact will happen as a result of the introduction of these three bills is the exact opposite. By virtue of having the consent-to-treatment legislation, we will codify the responsibility that has existed in common law and in certain pieces of legislation. But in common law the responsibility of health care providers is to inform all their patients with respect to the treatment and alternatives, to allow that person to give informed consent.
I think we will in fact be in a process of educating health care consumers in providing an opportunity for them to make decisions in an easier way and a more understood way. I think the way in which we educate, the way in which we publicize, the kind of forms, those sorts of things need to be very accessible, and I think that is an important point that you raise.
I also think the issue of tying it together with the advocacy legislation and rights advisers, in fact, also increases people's real opportunity to exercise their rights under the legislation, which without that might lead to people's having the right in law but not having the ability or knowledge to exercise it.
Mr Sterling: On the first question I asked, I am not sure I got a clear direction from Mr Sharpe. As I read your critique, and from what I know of your bill and reading section 13, there is nothing within your legislation that would prevent the committee from amending Bills 7 and 8 to dovetail with this particular piece of legislation. It might take considerable amendment, but there is nothing to prevent this committee from doing that.
Mr Sharpe: No.
Hon Ms Lankin: No.
Mr Poirier: On page 3, I look at, "affirms everyone's right to be fully informed when making a health care decision." At the top, the very first one at the top.
Hon Ms Lankin: I think I have a different numbering system than you. Hold on just a moment.
Mr Poirier: It is in what the new legislation does.
Hon Ms Lankin: Yes.
Mr Poirier: At the top of page 3, it says, "affirms everyone's right to be fully informed when making a health care decision." Would I read into that also the obligation of the physician or other health provider to disclose what the person's medical situation is, whether it is asked or not?
Hon Ms Lankin: My understanding -- and again I will just offer at any point in time, if I am erring, feel free to jump in -- my understanding and our intent is that in fact if a health care provider is prescribing treatment of some sort, that in order for an individual to be able to give fully informed and voluntary consent to that treatment, the full range of effects of the treatment, the reasons for the treatment and alternatives need to be disclosed. So I cannot imagine a situation in which that would be done without also disclosing the nature of the illness or prognosis that goes along with the informing of the nature and alternatives of treatment.
Mr Poirier: I still know for a fact from a medical background that sometimes physicians choose not to tell a particular patient what his or her medical condition may be, for whatever reason I have heard, namely the person may be too nervous, too depressed or whatever. I know this does happen.
Now consent, the right to be informed versus the duty to inform; what is the difference? Obviously, it is like the terms of the law; if you do not ask the question, you will not get the answer. Does that mean that you will get the answer even if you do not ask the question as to what could be wrong with you?
Hon Ms Lankin: If we look to the legislation itself, what we are talking about here is the protection that someone has to give consent for a treatment. So we have to look to what the elements are of providing consent.
Mr Poirier: That is right.
Hon Ms Lankin: Number one is informed consent, and this is the point that you raised. This is under section 5.2 of the proposed legislation. It reads, "The consent is informed if the person, before giving it, received all the information about the treatment, alternative courses of action and the material effects, risks and side-effects in each case that a reasonable person in the same circumstances would require in order to make a decision."
What I would suggest to you is that anyone who is in a situation where they are capable, mentally capable of providing consent with respect to their treatment, must therefore be informed and that there is a duty to inform.
If a physician feels there is a question about that capability, that kicks into another whole section and process in the act with respect to that. But even at that, if a person is found to be mentally incapable and has a rights adviser, their wishes can still be made known to the substitute decision-maker or the review board. I think that there is little way of getting around the duty to inform if there is treatment being prescribed and consent being sought.
Mr Poirier: Therefore the duty stands. If the patient is mentally competent, then the physician has the duty to tell that patient exactly what the medical condition is so that that patient can make an informed decision. If that patient is judged to be mentally incompetent, then that physician or other health provider would have a duty to inform the substitute. Right?
Hon Ms Lankin: Yes, if that person had already been judged to be mentally incapable and that was accepted and there was a substitute decision-maker.
Mr Poirier: So there is no way the health provider can get around that duty of telling the whole truth about what exactly is the nature of the medical problem with that person, correct?
Hon Ms Lankin: That is right.
Mr Poirier: Good. Thank you.
Mr Winninger: I wonder if you have looked at the potential conflict with the Criminal Code. We can provide all the protection we want in our statute and Mr Sterling has provided that in his bill. What about the potential for a criminal charge under the Criminal Code for failing to provide the necessities of life? Or I wonder if you have looked at the potential for civil suits from out of province or actions under the Family Law Reform Act for dependents' damages.
Hon Ms Lankin: This is an issue which will be raised with respect to both the bills before the committee and our legislation. There is certainly provision that protects or looks at the issue of liability of health care providers. With respect to the Criminal Code and out-of-province actions, civil suits, I am going to ask my legal adviser here to step in and be of some assistance.
Mr Winninger: I know he is quite competent to give that.
Mr Sharpe: Thank you. We have indeed reviewed a number of dimensions you have raised and others. Of course, a great fear that has existed in the minds of many in crafting bills of this sort has been, "What about the criminal repercussions if one follows the wishes of an individual and turns off a respirator or issues a no-resuscitation order or something of that sort?" Might there be criminal repercussions if we see this as a benefit? One of the things the United States can do that we cannot is that their state statutes deal both with the criminal and civil immunities when doing this.
The only thing I could say that may be cold comfort to physicians is that I am not aware of a criminal prosecution being brought in the circumstances contemplated by either Mr Sterling's bills or the bills we have introduced. That is not to say it is not theoretically possible. And I understand there is a private member's bill that was introduced in Ottawa to add the same kinds of immunities that have been added in the provincial bills, both Mr Sterling's and the government's.
The question of out-of-province liability and responsibility, the reciprocal enforcement situations, the family law situations and so on, we have been working through this in the spirit of sharing of information and co-operation with other jurisdictions. We have also been looking at the possibility, as we have done with the Mental Health Act and the uniform Human Tissue Gift Act, the notion of the uniform law conference and law commissioners -- because the best protection obviously would be if legislation of this sort could be introduced with proper immunity and cross-immunity references throughout the country.
As Mr Sterling indicated, these bills are in a sense precedents. I am aware that the legislation referred to other jurisdictions. These statutes, both Mr Sterling's and the government's, are quite a bit more comprehensive than those. It would be hoped that in time, perhaps not a long time, other jurisdictions would follow in our stead to provide the immunities necessary, to give full protections necessary to safeguard the rights of individuals.
I know, having spoken with my counterparts in other provinces, they are watching very anxiously and with great interest how these proceed through the process. If the Mental Health Act and other statutes, where in civil rights Ontario has tended to be a leader, are an example, I would hope that other jurisdictions will follow fairly quickly in our lead.
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The Chair: Mr Owens, one brief question.
Mr Owens: One of the issues, Minister, that I raised in the Legislature while debating Mr Sterling's private member's bill was around the issue of what happens in the emergency department. Everything that we have discussed today seems to indicate that things will follow along in an orderly process, that a patient will be perhaps diagnosed and go through a period leading up to his or her death. But what happens in the ER where a patient is brought in and perhaps has a living will that is duly signed and authorized? How are we going to ensure that those wishes are going to be respected, especially in a city the size of Toronto? It may work in a smaller jurisdiction, but I can guarantee you that at Toronto General Hospital there will just be no way that they can follow up those kind of wishes. Are we going to be looking at building any kinds of protections in so that all sides are protected and that wishes are carried out in these emergency circumstances?
Hon Ms Lankin: Certainly in the truest sense of the emergency that you describe, where there is nobody available who has any knowledge of what the wishes of that patient would be, the health care provider is not in a situation then to have knowledge and to be under any obligation to live up to those wishes. But if that knowledge is there, through any medical charts or through someone who may carry a card with him that indicates he does not want any blood transfusions, those sorts of things will give instruction. In that case, the health care providers would be bound by those instructions. But I think you raise an interesting point and an important one with respect to the education that we do, and if a person feels this is an important issue, how he communicates that, by information he carries with him. Do you want to add to that, Mr Sharpe?
Mr Sharpe: No. I was just going to say that we have provided, under the protection from liability section in the consent act, under a heading of emergency treatment provision, that says the health practitioner who administers treatment or refrains from doing so in accordance with the provisions of this act, the wishes of the person and so on, is not liable for administering the treatment without consent or failing to administer the treatment in accordance with the wishes of the person. So there are immunity provisions there.
But I guess the practical thing in the Toronto General Hospital emergency in the middle of the night will be how will the treating emergency care physicians be sure, when the person is wheeled in, say, with a significant head injury, how will they know for certain that this person has a terminal condition. Surely they will have to take some means to stabilize the person and then assess the brainwave activity or whatever is done in the emergency before determining whether the wishes of the person, even if they are known at that point, not to use heroic means to sustain life, would come into play.
Mr Owens: Right. You may get down to a situation where you are splitting hairs, where a terminally ill patient is run over by a bus and so what do you do. Do you carry out the wishes of the living will as a result of the terminal illness or do you move forward and treat the injuries resulting from the accident?
Hon Ms Lankin: I think what you describe would be the most extraordinary of cases. In many cases, as Mr Sharpe indicated, a period of time of assessment, of stabilization, takes place and during that period of time there is often contact of family members or others who would have knowledge of what the wishes of this individual would be if ,hat person had expressed those wishes and had strong feelings. I think that is one of the reasons that the government's initiatives reflect that flexibility. The alternative ways to have those advanced directives expressed, not just in a terminally ill situation and not just in a legally prescribed, legal will situation, are important.
Mr Harnick: The conundrum that the health care practitioner is under, and I refer to the question of Mr Winninger earlier, is that under the Criminal Code he may still be liable for a criminal prosecution. I appreciate that he has an immunity in terms of carrying out the wishes or not carrying out the wishes, but as long as that threat of criminal responsibility remains, do you not feel that most health care practitioners are going to have to rely on the immunity section in the act, because it is going to be very difficult for them to make that decision if they know that they could face criminal responsibility? Do you not have to try and make amends with the federal government before this has any meaning whatsoever?
Hon Ms Lankin: I will start off and then turn to Mr Sharpe. I would say that in some ways we face that issue currently under the common law. Doctors already have an obligation under common law to inform and when informed to I guess obtain proper consent. There have been cases that have ruled that the general sort of consent form when you check into the hospital and say, "Yes, anything and everything," does not stand up in terms of tests in court. So there already is that obligation. There already is that problem.
I think what we do here by codifying is set out the responsibilities, is inform both patients and providers of what those responsibilities are on both sides, and in most cases you then have patients who are making both informed decisions and making those decisions clearly known, so it perhaps in some ways lessens the ambiguities and the risk to the health care provider. But there is that issue of immunity.
Mr Harnick: I do not have a problem with that. I do not have a problem with the consent issue. My problem is, if you get into the death situations, then your difficulty is, if you are going to turn off the machine if those are the wishes, you can be in violation of the criminal law by doing that. At the same time, you have consent to do it, but one really has nothing to do with the other. They are not related. The difficulty is, if that medical practitioner has to make that decision, he could very well be liable if he is going to be prosecuted.
Certainly I appreciate that the federal government makes the criminal laws. The provincial government enforces the criminal laws. Maybe this is a more proper question for the Attorney General, but from your point of view, is there anything that you can be doing to avoid the actual prosecution, because the actual decision to prosecute becomes a provincial matter?
The Chair: Perhaps, Mr Harnick, you can refer this question to the Attorney General, who has been waiting patiently.
Mr Harnick: I only asked that question because I know Mr Sharpe's reputation and I know that he has written about these things.
Hon Ms Lankin: Perhaps we could let Mr Sharpe give one quick answer on this and it could be furthered by the Attorney General when he comes forward.
Mr Sharpe: Very briefly, what happens today, there are decisions made as we speak, I am sure, in hospitals in this province to turn off life-support systems, to issue no-resuscitation orders on people. It is done by caring, sensitive health professionals in collaboration with family, and sometimes with patients themselves, if they are conscious. The risks, if there are any, of criminal prosecution are I guess considered secondary in circumstances with that much suffering going on, on behalf of both the patients and their families.
Again, I do not know of a prosecution in such circumstances that has proceeded. Certainly in the discussions I have had with surgeons and others, their concern for their patient really overrides what they do not perceive as a realistic threat of criminal prosecution. But if you are asking would it be best to have a clear immunity in the Criminal Code, I think that would be everyone's preference that that be set out.
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MINISTRY OF THE ATTORNEY GENERAL
The Chair: We now welcome Howard Hampton, the Attorney General. If you could introduce your colleague, Howard.
Hon Mr Hampton: To my left is Stephen Fram, who, I am told, has been here from the inception of the thought about this kind of legislation.
Mr Sterling: Too long, too long.
Hon Mr Hampton: I would like to thank the committee for the invitation to appear. My remarks are brief. I want first of all to say to Mr Sterling that the government appreciates all of the work that he has put into these bills. He has focused the debate on these issues -- and that is not an easy debate -- and he has made a real contribution.
In that sense, it is a pleasure to be here today to speak to you as we begin consideration of Bill 7, An Act to amend the Powers of Attorney Act, and Bill 8, An Act respecting Natural Death.
As I said, the issues that Mr Sterling has addressed bring into focus the issues that he has focused on, focused the minds of the people of Ontario on these issues. But they are also of concern to people in every nation that has the medical technology to keep people alive indefinitely after their own bodies have failed and/or their mental capacities have gone.
I support the principle underlying these bills, that people must have a choice. The bills confirm the existing law that an adult can choose to consent or to refuse consent to any procedure. The bills provide two means of achieving that objective. Bill 7 provides for adults, while capable, to choose someone to make medical decisions for them based on the instructions in their power of attorney, presumably when they are incapable of making their own decisions, and Bill 8 provides for a document expressing an adult's refusal of treatment under certain circumstances.
As I said, I believe the central principle underlying these bills is the right of people to choose for themselves. It is the basis of the common law. Personal choice governing personal decisions must be the basis of any new law.
Yesterday the government introduced two major bills, the Substitute Decisions Act and the Consent to Treatment Act. These are designed as comprehensive legislation. The Consent to Treatment Act introduced by my colleague the Honourable Frances Lankin, Minister of Health, whom we just heard from, sets out in statute law the principles that govern consent to treatment and, for the first time, provides Ontario with a legally sound, universal and practical approach to ensuring freedom of choice about treatment.
The substitute decisions bill comprehensively states the right of people, while capable, to appoint an attorney for personal care with authority to make medical and all other care decisions. The government bill also puts attorneys for personal care in a framework that provides for principal decisions being made for all people who are mentally incapable and need decisions to be made.
There are major safeguards in both the government bills. The government bills, like bills 7 and 8, should be examined in a non-partisan manner. While my colleague the Honourable Frances Lankin and I have had the privilege of introducing these bills, the bills are the result of efforts that began under a Conservative government and were considerably advanced under the Liberal government. They address fundamental human concerns and fundamental human rights that matter to each member of the assembly.
There may be concerns by organizations and individuals who have made submissions in relation to bills 7 and 8 that their efforts will be wasted if the government bills supersede these bills that are before this committee. There may also be concerns that the government will not take notice of what is said in this committee, and that each organization will have to again present its views when the government bills are before a committee of the Legislature. That is not so. Both the Ministry of the Attorney General and the Ministry of Health will have staff at this committee paying attention to what is being said and its implications for the government legislation.
Some people may feel that the focus on Bills 7 and 8 will not be helpful since the government bills are more comprehensive. I think that the opposite is true. There are many aspects of the government bills that have been discussed for years. There are other aspects of the government bills that are important but that can be overlooked because they are only a small part of the comprehensive legislation. For example, the aspects of the government bills that are designed to meet the same needs as Bills 7 and 8 would not get the same detailed public attention because of the necessary complexity of the legislative provisions. The discussion of Bills 7 and 8 should be sharply focused and helpful to our consideration of the government bills.
Again, my officials and I will be paying close attention to the comments and concerns that will be expressed to the committee over the coming weeks. I note that the list of groups and individuals that will be appearing before the committee represents an impressive cross-section of views and experiences, and I look forward to all their contributions.
I want to say once again that I would like to thank Mr Sterling for the service that he has done for the province in bringing these bills forward and providing a means for focusing attention on all of these important issues.
Mr Sterling: I thank the Attorney General very much for coming and for the kind comments. I am always a little apprehensive when the Attorney General, a member of the Legislature from another party, lavishes such praise at the beginning of his remarks. I always that there is usually a kick that comes at the end of the remarks, but I have not received the kick yet and I hope I will not hear about that kick for a while anyway.
At any rate, I had the opportunity to just briefly look at an overview of your legislation. Members of the committee do not yet have a copy of your bill, which was introduced yesterday. It is just going through the printing process, etc. I sure they will be interested in it.
Many of the sections of the Substitute Decisions Act deal with other matters, deal with matters that are already contained in the Powers of Attorney Act, deal with property management, deal with the whole concept of the public trustee and the public guardian, etc.
Prior to your attendance at the committee, Attorney General, I was expressing some concern over the whole idea of making the issue more complex rather than keeping the issue as fairly simple and straightforward as you could. I just wondered. In terms of the approach of the Minister of Health, she was kind enough to point out what she saw as deficiencies in the bill. Would you be kind enough to perhaps promise, through Mr Fram, to put forward what you would see as the deficiencies in Bills 7 and 8 with regard to those bills as they stand and stand alone.
Hon Mr Hampton: You were asking for the kick, Mr Sterling. Here it comes. As you know, Mr Fram has been around for a long time. He has, one might say, ownership of many of these issues. He has delineated a number of concerns and a number of points with respect to your bills. I know he would be happy to review them and he could do so right now.
Mr Sterling: Before he does, I just want to point out that back in the old days Mr Fram did not have ownership of the bills, nor the issues. I can remember many times with Mr Fram, our having discussions, and from time to time, the politicians would win. At any rate, Mr Fram, I do not know if you want to delineate them at this point in time.
Mr Fram: While people say that I have ownership, of course, as Norm has said, "You have ownership of this legislation." The major problems with trying to be simple in the legislation is that it is the legislation that actually governs the way something is used. For a long time I have been very attracted to plain language drafting. As Norm has probably seen, even in trying to do a natural death act it gets very complex when you try to relate one thing to another. I have come to the conclusion that in this kind of legislation it is not the complexity of the legislation, which the public by and large will never see, but the simplicity of the product of the legislation, that is, the form of power of attorney.
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What we conceive of in drafting these provisions is a simple public form that will be drafted and made available to people by the public guardian and trustee's office, that it will be available with instructions for filling it out, guidance as you go through, along the lines of the American Bar Association draft powers of attorney form, which is an excellent document that was several years in the evolution. But it combines both the property aspect and the personal care medical decisions, advance directive provisions, if you want to fill those in, and leads you through so that you finally have a document that is complete.
I do not think that product would be any different with simpler provisions. I mean, in terms of your amendment to the Powers of Attorney Act that is pretty simple. You say you can make a power of attorney dealing with medical decisions and set out instructions in that to guide your attorney. But it is unclear. First of all, powers of attorney for property operate while the person is still capable. If you just created a power of attorney for personal care or for medical decisions, the assumption would be that two people would have control over the same natural life.
That is, your attorney would be able to make decisions for you while you were still capable if it operated like a property power of attorney because it does not start operating when you become incapable. It starts operating as soon as you make it. That is okay for property because you can tell your attorney exactly what happens, but in the area of personal care or decisions it is a very problematic area.
Mr Sterling: I do not want to debate with you too deeply on that point but I have a problem with the concept you put forward. If I had the power of attorney and said Joe Blow should have the right and it comes to making a medical decision or a decision as to treatment and I did not agree with him, then I would say to give me the power of attorney, rip, done and then that is the end of it.
Mr Fram: But if you were weak but still competent and you could not go rip, if you were paralysed; there are a lot of conditions where you are weak and nobody is going to probe. The fact is that there are dilemmas that need safeguarding and the government bill has those in the form of advocacy and in the form of an ability to apply to a review board.
The next related issue is the triggering event: incapacity. We will assume and I assume you intend that a power of attorney will only operate when the person who made it is no longer capable. There is no definition in law that it plugs into and there are no provisions for how we find out or determine that incapacity. The government bills have spent a long time and there has been a lot of discussion among community groups addressing the question of how we determine incapacity and what we should mean by it. There is a whole lot of debate that has gone on about those things.
Again, as raised, there is no ability in your bill for the adult who has made the power of attorney to contest that he is still capable. This particularly arises in the case where he has had a stroke and still has capacity, but when you are lying in a bed with the doctors and so forth, if you do not have tests and if you do not have an ability to appeal, anybody lying down tends to be looked at as powerless and tends to look to people standing up to make his decisions for him. You have to be very careful at where power takes over, at where the power of attorney actually works.
The central dilemma, however, with your power of attorney is that there is nothing in the Powers of Attorney Act that makes a physician accept it. It is the fundamental law of agency that a person can look behind the agent to the principle. There is nothing in the bill that requires physicians to accept the power or attorney and the authority of the attorney, and then they will not do it unless they want to do it.
It is a quixotic matter of whether they are going to recognize powers of attorney or not. With the dovetailing of the consent legislation they say, "If somebody is incapable, first you accept a guardian, second you accept a validated power of attorney, third you accept an unvalidated power of attorney," and so forth. Then you go to the family members, spouses and partners, and that is the triggering event that says, "Physicians, here is how you consent."
The notion of powers of attorney has to be married with an obligation of a physician to actually accept certain substitutes once the person is incapable, and that is in the consent to treatment legislation.
While you have provisions in your natural death legislation, there is nothing that would protect people, acting in good faith in a non-financial area, accepting that power of attorney. There is a question of what happens. Where there are no expressed statements set out in the power of attorney, what is it that the attorney does when he comes to those things? It does not say that wishes are the basis of decision-making, so we have that as a central problem.
Both pieces of government legislation are based on the notion that no matter how somebody gets to be a substitute -- whether it is because we choose him as an attorney, or he is chosen by the court in a guardianship proceeding or whether it is because a situation has arisen in a medical context or a health context and a decision must be made right away -- the wishes of the patient govern.
The central theme is that no matter how those wishes have come about -- whether those wishes are set out in a power of attorney, or those wishes are set out in another document like a Natural Death Act or whether those wishes are set out elsewhere -- those wishes must be followed. If somebody has changed his mind and the person who makes the decision knows that, he must go on the most recent specific wishes.
The central theme goes all the way through the government legislation. I will stop there.
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Mr Sterling: I asked to be kicked, but not in --
Mr Fram: Sorry, Norm.
Mr Sterling: I will see you outside.
The Chair: Any further questions from the government caucus? None? Mr Harnick.
Mr Harnick: My question is of the Attorney General. One of the difficulties I have with the way this process is now unfolding is the fact that as of right now, I do not have your bill in front of me. I know the Canadian Bar Association is going to be commenting on these pieces of legislation, Bills 7 and 8, but I do not believe it has your bill in front of it.
One of my concerns, and I say this with great respect, is that I hope we will have the opportunity for witnesses such as the Canadian Bar Association and the other people who are coming to comment on Bills 7 and 8 to comment on the legislation that you and your colleague the Minister of Health have now tabled before the Legislature. I hope we are not going to go through this exercise dealing with Bills 7 and 8 and not have these people have the opportunity to comment specifically on your own legislation. I can appreciate that you believe it is good legislation, but it may be able to be made better, and my only concern is that we do not have it in front of us now, when we have all these people coming to see us. Surely we want them to comment on the new legislation as well. Will they have that opportunity?
Hon Mr Hampton: It is my information that the clerk now has copies of both government bills and they can be made available to any group or organization. I know Mr Sterling has a copy of the government bill, plus the explanatory notes I believe, so if he wishes particular comment on particular sections, he is able to distribute that. The government's position is that we will do everything to ensure that that can happen, and for any organization that wants a copy, it can get it from the clerk or it can get it from us.
The Chair: Mr Harnick, your comment did presage the presentation from the Canadian Bar Association, a group which I am sure you would not want to keep waiting for too much longer.
Mr Harnick: I appreciate that, but I think they would have some concerns about knowing that they might want an opportunity eventually to talk about this, and we are doing this in a non-partisan manner.
My only concern, and I put it again to the Attorney General, is that these groups all have an opportunity to comment on the legislation that he has brought forward. Unfortunately, we are going to go through this exercise because we now have had second reading on Bills 7 and 8, we are now having committee hearings, we are now hearing the witnesses. I do not want people to think that if we have to come back and do this again when your bills get to second reading -- that we are not being accused of obstructing or delaying.
It is important legislation and it should be non-partisan. My concern is sincere and I think all these experts should have the opportunity to come back and comment on your bill. Unfortunately, we are duplicating efforts here, but I just want to make sure we have a commitment from you that these people will have that opportunity.
Hon Mr Hampton: I think what has to be acknowledged is that the issues that are open for debate and that Mr Sterling's bills and the government's bills necessarily call into question are quite complex. There are many of them and there will be ample opportunity to look at the government bills, probably here now and at some later time when they come back to committee. Heavens, I do not think the opposition would be accused of engaging in obstructionism for asking for that. We all know that there are plenty of other opportunities to accuse you of obstruction.
The Chair: That was very helpful testimony, Attorney General. Thank you.
Mr Sterling: You may say that.
The Chair: Well, I want to move along.
CANADIAN BAR ASSOCIATION -- ONTARIO
The Chair: We have now a presentation from the Canadian Bar Association -- Ontario, Mr Corbin and Mrs Hoffstein. As you have seen, as you have been patiently waiting this afternoon, basically your presentation will take as much time as you need to and then the time remaining would be divided among the various caucuses for questions.
Mrs Hoffstein: Thank you. It has been a very interesting discussion until now.
Mr Corbin: Thank you for the opportunity to present some comments on Bills 7 and 8 this afternoon. I also want to thank in particular Mr Harnick for his kind thoughts and views on the Canadian Bar Association -- Ontario having an opportunity to express its comments on Bills 108, 109 and 110, which were introduced yesterday. We certainly hope to take advantage of that opportunity and trust that the respective ministries will give us, and other groups of course, the opportunity to make those presentations with some time for deliberation, just judging by the size of the legislation that was introduced.
The executive of the Canadian Bar Association -- Ontario trusts and estates section specifically is who has authorized us to make a submission on Bills 7 and 8. I believe you may already have in front of you a copy of the submission. We chose to put it in writing and submit it according to the deadline in the hope, possibly, that you might have the opportunity to review it before these hearings. If not, we will perhaps go through some of the highlights of the submission indicating where our concerns are with the private member's bills, and probably still try to keep things fairly short in our presentation and let you ask questions as much as you like.
You will see from the executive summary at the front of the submission that we have expressed some reservations, among other things, about the timing of the process in Bills 7 and 8. You have heard a number of other people this afternoon make those same comments. Obviously in light of the events of the last 24 hours, we can only reiterate our concerns that whatever treatment is given to Bills 7 and 8 it would in our view be imprudent to push ahead with them without having a full consideration of how they interrelate to the government legislation.
Since the government bills were just introduced, subject to the brief comments that have been made this afternoon, we are not in a position to offer any comments on that legislation. But I guess we can say in general terms, as will be evident from the comments we make about Bills 7 and 8, that the government bills certainly seem to address some of the concerns that we have with the private member's bills and to that extent we welcome the opportunity to review them and comment.
The reason that we are here and the reason that the trusts and estates section felt that they had to come forward is that as estates practitioners we are being asked all the time by our clients, in addition to drafting the will and the power of attorney, "By the way, we'd like to have a living will." Since we all know that at this moment a living will has no legislative base, it is certainly, from a professional point of view, quite unsatisfying to have to draft a document that, as we do it, we know will not be something that the client can ensure will be carried out in conjunction with the family or the physicians. To that extent, the initiative that is represented by Mr Sterling's private member's bills is certainly welcome because we are trying in some way to fill that vacuum so that at least we can say to the clients when they finish the document with us, yes, and here is what it means for you.
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The concern we have about Bills 7 and 8 and in particular Bill 8 dealing with the living will is that it is really going to enshrine a document which represents not the furthest advances. As you have heard this afternoon, the notion of the medical directive or advanced health care directive represents a significant leap beyond the living will. The living will has been criticized first because it is simply a rejectionist document, "I do not want certain treatment," second because it deals only with a terminal condition, and third because it is couched in very vague and unhelpful language for the family and physicians, talking about no heroic measures being taken. Surely, with the speed of medical technology advances that have been evident of late, what is today's heroic measure may be tomorrow's standard procedure. For that reason, we are very pleased to see the kind of initiative that appears to be reflected in the government legislation to go beyond the living will, encompassing what Mr Sterling's bills would contemplate but looking at the broader issue of allowing people to cover a much broader spectrum of conditions and kinds of treatment they would be prepared to accept or not to accept.
One of our concerns in looking at the legislation -- unfortunately, we did not have the benefit of speaking to Mr Sterling in advance -- is that it was not clear to us the extent, if any, to which the experience in the United States has been looked to. Mr Sterling mentioned that more than 40 states have legislation dealing with living wills, and in light of a number of the concerns we have identified in these bills, our sense was that perhaps inadequate examination, homework, may have been done in looking at what is going on south of the border, trying to learn from their successes and failures both in terms of the statutes that are being enacted and what form judicial response to those statutes has taken.
A couple of people have already spoken about the problem of criminal prosecution. Our submission, as you will see if you take a leisurely moment to read it later, echoes that concern. It is already apparent that there is a very serious lack of communication between physicians and their patients about living wills. Whether it is a question of discomfort on the part of one or the other or both of them, is difficult to say. I know there are studies being done by physicians here in Canada as well as in the United States trying to identify what is impeding the use of living wills. But it seems to us that if you impose sanctions or the threat of sanctions of fine and imprisonment on a physician, the likelihood of his wanting to deal with the issue of a living will -- even mention it to the patient -- is reduced out of fear that the patient might say, "Sure, that is what I want," and yet down the road possibly the threat being there that that living will might be used against them if they felt that they, for whatever reason, could not comply with it.
Again, we do not have the benefit of seeing the legislation that the government has brought in, but we did not hear mention of any sanctions of the kind that are in Mr Sterling's bills. Assuming that is the case, I think we would welcome that. The most serious reservation I think we have in principle about the two bills is that they impose sanctions that may turn out to be counterproductive in the sense of impeding the use of living wills rather than encouraging them.
I believe as well that others may have touched on the issue about Bills 7 and 8 together. They are being put forward together and I am not sure whether enough consideration was given to how they relate to one another.
First, if you consider the scenario in which an individual does not have a living will and has done a power of attorney that authorizes the consent or withholding of consent to medical treatment, if the proxy, the decision-maker, says, "Yes, pull the plug," and the physician relies on that, there is nothing in Bill 8 or in Bill 7 which would give any kind of protection to the physician, because he is not carrying out the terms of a living will, he is carrying out the terms of another person who has given that direction.
Similarly, under Bill 7, if you have a substitute decision-maker who says, "Yes, apply the life-sustaining procedure," and the patient in question has a living will that says, "Don't do it," then where does that put the physician? Which one is going to take precedence? I believe I heard one of the speakers before talk about a priority in which those kinds of issues would be addressed.
The concern that I had when I looked at the legislation, Bill 8, and I think it could be fixed fairly easily -- I should say at the outset, obviously we cannot comment on the other bills. Bills 7 and 8 are the only ones that are here, and although Mr Sterling has not invited us to criticize the bill, that is what we felt was our responsibility today.
The living will as it is drafted is replete with definitions, and although Mr Sterling suggested that the intent of his private member's bill was to keep it simple, which lawyers are always accused of failing to do, if you look at the way the definition of living will is couched, it has in it the references to terminal condition, mental incompetence or competence and life-sustaining procedure, and if you mix that all together, you may have a situation in which a person cannot draft a plain-language living will, because arguably, if he or she does not make reference to the specific description of mental competence or incompetence set out in the legislation or does not properly describe the terminal condition, one could say that that is not a living will, it does not fit the definition. It was not clear, although it is now, whether there was some intent that there be a statutory form of living will. Perhaps there ought to be.
I think our view would lean to the other approach, to try not to introduce requirements that would result in the frustration of an individual's living will that is expressed in very simple language and yet a lawyer poring over it would say: "Aha, there's something missing here. This isn't a living will." You should not rely on that in order to carry out those terms, those wishes.
So our view would be, simplify things, at least, by removing the application of those various definitions of terminal condition, life-sustaining procedure and so on, take them out of the definition of a living will. The living will would simply be an expression, and those definitions would be restricted to the application, the issue about what the physician should do, that he would only rely on a plain-language living will if it related to life-sustaining procedures if it was a case of a terminal condition and he was satisfied about the person's state of competence at the time he or she did it.
I will try not to repeat everything that was said before, and I will also try not to go point by point through this material but pick out some of the points that I would like to stress.
With respect to the definitions, I suspect that you are going to hear a lot from physicians on this point, about what is and is not a life-sustaining procedure. We certainly do not have that expertise, but we understand that that is a debate that has gone on in the United States and one can only assume that it would go on here as to, for example, whether artificial nutrition or hydration constitutes a life-sustaining procedure.
Again, the question of what is a terminal condition and whether or not death is imminent is not something for us to comment on, but simply to suggest that there may have to be some significant input from physicians beyond what may have already taken place in order to deal with some of those issues in advance and not spawn litigation later on.
1730
One point struck us, that given the fact that this is a basically rejectionist document, we note that the definition for mental competence requires the person to understand the consequences of giving consent to the treatment, and in view of the fact that it is a document that says, "Don't give me this," it was not clear why they would have to have that understanding.
The definition of "physician" ought to be clarified, as to under what laws they are legally qualified. I am sure there are a lot of people who believe they are legally qualified physicians yet may not fit the definition according to Ontario law.
On the question about who may execute a living will, the private members' bills say the age of 18 seems to be an appropriate age. It may be, although the Public Hospitals Act talks about consent to medical treatment and it uses the age of 16. I am not sure whether there would not be some merit in having some harmonization in the various statutes about the age at which consent can be given.
There are some details about witnessing requirements that I do not think I will go into. Suffice to say that having much more familiarity with the Succession Law Reform Act and the execution of wills, we thought some of that language might be useful to import into this and get rid of some of the specific problems we have there. One of them, to mention only one, is the notion that why should a person not be allowed to execute a living will through the use of another person, to in his presence and by his direction sign a living will? Given the ease with which a living will can be revoked, it strikes us that there ought to be a bit more flexibility in executing a living will.
The question of whether a witness is related: We are not really looking at the merits of that being good or bad -- I think it was alluded to before -- but what does it mean to be related? You have relatedness under the Income Tax Act and probably a whole lot of other statutes. It would be helpful to say exactly what is meant by that.
We have a lot of problems with the issue about a person being disqualified if they are a potential beneficiary. What does it mean to be a potential beneficiary? In theory, I could be a potential beneficiary of Mr Sterling's will.
Mr Sterling: After this presentation, fat chance.
Mr Corbin: I suggest that word "potential" has a lot of problems associated with it, but beyond that, what about the notion of being an actual beneficiary? How do you know? A person does not have to disclose to you that he has named you in their will, and he may well tell you that and have done something quite different, as I am sure those of you who have studied a few cases in the law will have seen.
The reference to an estate is a little troublesome, because you could imagine somebody coming forward and saying, "Yes, I was a joint tenant with the person who made their living will, and when he dies I will get it by right of survivorship," but when one talks about an estate, one normally talks about joint tenancies flowing outside of the estate. Likewise, being the named beneficiary under a policy of insurance: Outside the estate, does that mean you are or are not a potential beneficiary? What is the impact of being, unknown to you, an actual beneficiary, for that matter? What does that do to the effect of your having been a witness?
What about being financially responsible? We think that term is a bit vague, and suggest that perhaps the definition of "dependant" under the Succession Law Reform Act might be a good place to look.
Another problem: When are these tests of being related, being a potential beneficiary -- assuming you can figure that out -- and being financially responsible for someone to be applied? The legislation does not say it is at the time the living will was signed, and you might ask whether subsequently becoming financially responsible somehow invalidates that living will.
Another general concern that struck us about witnesses was that some care is taken in Bill 8 to ensure that certain people are not witnesses, and I believe the legislation that was introduced by the government has safeguards as well, perhaps a different set; but given the fact that Bill 7 allows a person to make a power of attorney that authorizes another individual to order the withdrawal of life-sustaining procedures, then it seems to us that the same kind of safeguards, whatever they be in the context of executing a living will, have to go into the Powers of Attorney Act. And that again raises an issue: If there should be safeguards like that, then how can you do what Mr Sterling has tried commendably to do with Bill 7 and make a very simple amendment to the Powers of Attorney Act which covers decisions about property as well as decisions about personal care?
We have a few concerns about revocation of a living will, the suggestion being that oral revocation is sufficient and you do not even have to be mentally competent to do that. I suggest that would put the physician perhaps in a difficult position if the patient is in a state of dementia and has purported to give some indication that he or she is revoking the living will and the physician is quite confident that it is not the person's true will speaking. On that same point, too, there is obviously room for abuse when a physician is unhappy about being confronted with a living will. If the rule is that a revocation can take place orally without any witnesses being present, I suppose if I were unhappy, if I were the treating physician I would simply say, "Oh well, just before he lapsed into a coma he said he revoked his living will," and therefore I am off the hook.
On the question of being off the hook, there is also a problem as we see it, that it is rather remarkable that in Bill 8, a statute that proposes sanctions to be imposed, there does not appear to be any defence, so that if you reasonably believe the person was not competent when they executed that living will, you have no choice. You either comply with the living will, transfer the individual -- assuming you could find someone to transfer that person to and assuming you are not in violation of some regulations that govern people who are treating individuals in a hospital setting. Where does that put you?
The question about how the living will takes effect: I do not know if there is an easy answer to that. That is that if I sign a living will today and put it away in a drawer and then something happens to me and I may have had a change of heart but I never made any indication that I wanted delivered, there is nothing in Bill 8 that says it will not be effective if some member of my family finds it in the drawer, takes it out and hands it to the physician giving care. I do not know whether that is good or bad, but the fact is it is not addressed. The question about people consulting more than one physician and one being aware of the living will and another not being aware, I am not quite sure how you deal with it as a practical matter.
I will just make a couple of more comments about the attempt to protect physicians from liability and then stop and leave it open to you for questions. In subsection 6(1) of Bill 8 it is a little too broadly worded. It says "any person who carries out a living will," and I think it should probably be restricted so that any person who is either the physician responsible for treatment or is carrying out the direction of the physician responsible for treatment, but nobody else, would have that protection for pulling the plug.
I think a comment was also made earlier by Mr Winninger: What about a civil suit from outside the jurisdiction? I do not quite know how you deal with that. I guess you would have to look at the laws of the other jurisdiction and get into tough conflict of laws questions. There is no protection here for a suit by a member of the family under the Family Law Act, and I think if you are going to go with the kind of exoneration contained in Bill 8, you should not restrict it to the person who made the living will but individuals who would have a right to bring an action for dependants' claim for damages.
A couple of small points as well: whether the legislation would be retroactive to cover documents that through some foresight were signed before the legislation comes into play. It would be nice to see a statement in there to that effect if that is what is intended. And I do not know, by the way, whether that is covered in the legislation the government has in mind as well.
Last, should there be some recognition of living wills which come in from outside the jurisdiction that are valid according to Nova Scotia law or Quebec law? There is nothing in so many words here which would validate those documents. I should think that with the mobility of individuals that would be worth doing.
I am going to stop at that point. My voice is gone.
1740
Mr Sterling: I would like to thank you -- I think -- for coming to the committee and having considered my bills. As you may or may not be aware, I first introduced both of these bills a year and a half ago. I think it was in 1989 when I first started down the road and looked at a number of the American jurisdictions in terms of the kinds of legislation which they had. The legislation I referred to tended to be fairly simplistic in its approach. My attempts were to try to keep the legislation somewhat simplistic in its approach as well. Whether I have achieved that in its final analysis will be determined somewhere down the line, I guess.
The bills which the Attorney General and the Minister of Health have put forward, particularly the Attorney General's bill, which is more relevant to Bills 7 and 8, include a whole host of provisions. I guess you can argue two ways on dealing with matters like this: whether or not they should be carved out and put in a separate piece of legislation over here and carve out other matters and put them over here. I tend to sort of like to do that even if you have to be repetitive to some degree in legislation. I know legislative counsel do not like to be repetitive in legislation. They resist that in as many situations as they can.
My concern is that you do not narrow the legislation so much with dealing with the official guardian or the public trustee that a person who is trying to understand the law in relation can read an act which is contained in a document which you can present to him if he wants to understand that. Also sometimes the legal profession in fact needs separate documents to understand what is happening.
I do not know whether you can comment on that approach without having the legislation. If you cannot, if you do not feel you could comment on the approach of the legislation now, perhaps you might want to wait a week and make a written submission to us on that.
Mrs Hoffstein: We clearly cannot comment on legislation we have not reviewed in detail, but I do welcome the opportunity. I just want to say that part of the problem we have had is that although we appreciate the fact that the legislation you have proposed is simple and straightforward, it in fact almost has put us as lawyers into a straitjacket in terms of what it is that constitutes a living will. Again going back to the definition, I think if the initiative in the other legislation is to broaden the scope of what constitutes a document that will be affirmed as a living will and will be given effect to, then I would welcome that opportunity because I think it gives more flexibility to the person to make a statement that would then qualify as a valid living will. Again, it is very hard for us to comment as to whether the new proposed legislation has that effect. That was one of our major concerns with Bill 8. It had mainly to do with the definition sections. That is where it was coming out. It seemed to create a statutory form of living will that you could not deviate from because otherwise you would not have something called a living will.
Mr Sterling: I guess my intent in drafting it was to try to be definitive to some point --
Mrs Hoffstein: But you can see the problem it creates.
Mr Sterling: -- so the public would have some direction as to how to draw a living will, but it certainly was not my intention in dealing with it to try to restrict in any way a valid directive by a person trying to deal with the same problem.
The Chair: Certainly because of the concurrence of these several bills and the fact that these hearings will be going on for another couple of weeks, any submissions you might have in regard to those other bills would be very gratefully received.
Mr Harnick: I will be very brief. In the normal course, I gather you will be doing some sort of written submission on the new legislation. Is that generally the way you would go about it?
Mrs Hoffstein: We would like to have that opportunity. We would also appreciate a sense of your timing here and when you would be able to see us again so that we understand what our timing is.
Mr Harnick: I tried to get that from the Attorney General, who did not want to tell me.
Mr Hoffstein: Are you able as a committee -- this is a question I have for you -- to consider comments about draft legislation that is not yet at second reading stage?
Mr Harnick: Certainly, and if that could be provided to us, I suppose as soon as possible, because I have no idea when this is coming back for second reading. I suspect it may be before the end of June. Whether it gets referred back to a committee is another question.
Mr Corbin: It probably would not be, as you say, in the normal course on that kind of timetable, but we would do whatever we could to put something together in the time available.
Mr Winninger: Your brief raises a number of interesting and vexing issues, including whether a physician should look behind a living will if he is at all suspicious as to its validity. One issue you did not raise but one that was raised by a University of Windsor law professor was the issue of subsection 3(3) and whether pregnant women should be excluded from the ambit of the living will, the potential for violation of the Charter of Rights and so on. I wonder if this would be an appropriate time to comment on that.
The Chair: I believe, Mr Winninger, we are going to have a number of witnesses who will be speaking to that specific issue, but please go ahead.
Mr Winninger: They are only here once right now.
Mr Corbin: I think we raised the issue somewhere in our submission, without trying to take any particular position on it, because obviously it is a sensitive one. That is on page 23. It is an issue that may not be all that obvious about whether the physician has an obligation to inquire or somehow determine that the individual is or is not pregnant before he acts on that living will, and the question about whether it offends the Charter of Rights. I would not even want to suggest any answer to that kind of question. I think it is a difficult one.
Mr Mills: I am glad Norm has come back, because I would just like to say, I do not know if the government side has said anything yet -- us ordinary folks, not the ministers -- about the wonderful effort he put into that. I am sure it is appreciated in a very real way, because it addresses all kinds of problems.
I would just like to say that every time we come to this committee, one is almost having to bring another case with him, because we get so much paper I cannot carry it away any more.
A couple of quick queries. I do not know, Norm, if you thought about this, but I was wondering if I signed a living will or made one and then say, for instance, I went to England. Do you see that as being good there, or would they say, "Well, that was made in Canada and we cannot act by that"? How would that be fixed?
Mr Harnick: Good question.
Mr Sterling: I think the laws we make here are only applicable here in terms of dealing with these kinds of matters.
Mr Mills: Another point is about survivors' pensions. I just wondered, when you have, say, one spouse who lives and gains a 75% pension through the decease of the other spouse, and that happens deliberately, what happens if the reaction of the carrier of that type of pension is to say, "Well, that person did not die." That is a concern I had. I saw in your brief that you mentioned some of those things, and I thank you for that brief It is very interesting. Thank you, Norman.
The Chair: Thank you very much, Mr Corbin and Mrs Hoffstein.
COMMITTEE BUDGET
The Chair: The clerk is now circulating a copy of the budget, which would include some summer sittings, in order for it to be presented to the Board of Internal Economy prior to those sittings occurring.
Before we look at that, I should make brief mention of a couple of items. Our researcher has prepared a summary of the recommendations which have been mailed to us in regard to Bills 7 and 8, and they will be forwarded to our offices. We have been, I understand, given permission to meet on the evenings of 3 and 4 June, so we will be here between 7 and approximately 9:30 on those evenings, in addition to regular afternoon sittings.
You have before you the budget for the committee, if the clerk could give us a brief overview.
Clerk of the Committee: This budget has been before the committee before, and the question that was put to the committee was, "How much time shall we put in for sittings during this coming recess and the winter recess?" There did not seem to be any answers coming back from any of the caucuses, because nobody has any idea what will be referred to the committee.
The last meeting of the Board of Internal Economy before the summer is next Monday, so I took a stab at it and threw in eight weeks of sitting time for this coming recess and the next recess, split between hearings at Queen's Park and hearings on the road, and therefore the budget came out to about $384,000, which is fairly high. This can be changed. I am open to suggestions from any committee members or any direction at all.
Mr Morrow: When will this budget go before the Board of Internal Economy?
Clerk of the Committee: If this budget passes today, we would hope to get it before the board at its next meeting, which is 3 June, I believe.
Mr Poirier: I just wanted to note, Lisa, under the travel per diem hearings in Ontario, the last line should read "eight days times one Chair times $90" rather than "11 members."
Clerk of the Committee: I think the multiplication is still correct. I will change the "11 members" to "one Chair."
Mr Poirier: When is the board meeting?
Clerk of the Committee: The next meeting of the board is this coming Monday, 3 June. That is supposed to be the last meeting before the recess.
Mr Harnick: I was going to say that we should have a subcommittee meeting to discuss this, and then get back to you and approve it at the beginning of the next meeting.
Clerk of the Committee: Anything is fine. Just as a point of information, I do not think that a lot of other committees have passed budgets, so if we all miss the 3 June meeting, we will be in the situation of having to get the board to walk around the budgets to approve them before the recess.
The Chair: So we would have to meet between now and 3 June as a subcommittee.
Mr Harnick: Yes. Do you expect Mr Sorbara back?
Mr Poirier: I am not so sure what his schedule is on the budget hearings, but if not, let us know. I have not had a good laugh in a long time. I will go on the subcommittee.
Mr Morrow: Can we empower you hopefully to find out what our agenda is going to be like this summer? Is that possible?
The Chair: I will be having dinner with the House leader. I could ask.
Is it the intent of the committee that we refer this matter to the subcommittee and from there to the Board of Internal Economy?
Mr Mills: Yes, that is my idea.
The Chair: I will accept that as the intent and we will strike a subcommittee meeting between now and 3 June. We are adjourned until Monday.
The committee adjourned at 1755.