Assemblée législative de l'Ontario

ADVOCACY ACT, 1992 / LOI DE 1992 SUR L'INTERVENTION

CONTENTS

Monday 31 August 1992

Advocacy Act, 1992

STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE5

*Chair / Président: Cooper, Mike (Kitchener-Wilmot ND)

*Vice-Chair / Vice-Président: Morrow, Mark (Wentworth East/-Est ND)

Akande, Zanana L. (St Andrew-St Patrick ND)

*Carter, Jenny (Peterborough ND)

Chiarelli, Robert (Ottawa West/-Ouest L)

Curling, Alvin (Scarborough North/-Nord L)

Harnick, Charles (Willowdale PC)

Mahoney, Steven W. (Mississauga West/-Ouest L)

*Malkowski, Gary (York East/-Est ND)

Runciman, Robert W. (Leeds-Grenville PC)

*Wessenger, Paul (Simcoe Centre ND)

*Winninger, David (London South/-Sud ND)

Substitutions / Membres remplaçants:

*Brown, Michael A. (Algoma-Manitoulin L) for Mr Mahoney

*Eddy, Ron (Brant-Haldimand L) for Mr Curling

*Owens, Stephen (Scarborough Centre ND) for Ms Akande

*Sterling, Norman W. (Carleton PC) for Mr Harnick

*Sullivan, Barbara (Halton Centre L) for Mr Chiarelli

*Wilson, Jim (Simcoe West/-Ouest PC) for Mr Runciman

*In attendance / présents

Also taking part / Autres participants et participantes: Fram, Steve, counsel, policy development division, Ministry of the Attorney General

Perlis, Linda, policy analyst, Office for Disability Issues, Ministry of Citizenship

Malkowski, Gary, parliamentary assistant to the Minister of Citizenship

Valentine, Mary Beth, senior policy and program adviser, Office for Disability Issues, Ministry of Citizenship

Clerk / Greffière: Freedman, Lisa

Staff / Personnel: Hopkins, Laura, legislative counsel

The committee met at 1354 in committee room 1.

ADVOCACY ACT, 1992 / LOI DE 1992 SUR L'INTERVENTION

Consideration of Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / Loi concernant la prestation de services d'intervention en faveur des personnes vulnérables.

The Chair (Mr Mike Cooper): I would like to call this meeting of the standing committee on administration of justice to order.

I would like to remind all members of the relevant provisions of the subcommittee report and order of the House under which we are operating. The committee will utilize the reprinted bills containing proposed government amendments and deem these amendments moved. A maximum of two days' clause-by-clause consideration shall be spent on each of the bills, except for Bill 110, which shall be considered for no more than one day. Votes on the individual sections of the bills and on the bills as a whole shall be deferred until following consideration of the final bill.

It is my understanding that given the unique situation that we face, considering four interrelated bills at the same time, it was the intention of the subcommittee to ensure that the bills would be amendable right up until the last moment. If, for example, an amendment was to be made to Bill 110 that affects the other bills, the subcommittee wanted to ensure that there would be an opportunity to go back and amend the other bills so that there would be consistency.

With this in mind, and given that the standing orders on deferred votes in the House do not easily translate to committee practice and given that it is the responsibility of the Chair to ensure the orderly progression of committee business, I would like to outline the following rules to guide us in our deliberations. Given that this is the first that I know of that any committee has attempted to deal with such a complex process, I am not intending that the following guidelines become firm committee precedents, although at the conclusion of the process, the Chair would invite feedback on the pros and cons of the process.

1. If there are no amendments before me to the section under consideration, I will simply ask if there are any questions, comments or amendments. If there are none, we will defer the vote on the section and proceed to the next section.

2. If there are amendments to the section under consideration, either incorporated in the reprint or yet to be moved, I will proceed through the individual clauses of the section and ask for questions, comments or amendments to each clause. Any amendments that have yet to be moved shall be moved at that time. If the clerk is not in previous possession of an amendment that you wish to move, please provide the clerk with 25 copies of the amendment at the time you move the amendment. If an amendment already appears in the reprint, the government will be given an opportunity to explain the amendment if it so chooses, then the opposition parties will be given an opportunity to either comment on or ask questions about the amendments. As we proceed through each amendment, we will vote on the specific amendment. What will be deferred are the votes on the sections as a whole. By deferring the votes on the sections, members will, subject to the order of the House, be permitted to revisit a section without unanimous consent.

Some may ask why we are not deferring all votes, including votes on amendments, and the answer is quite simple: Without knowing what amendments have either passed or been defeated, it may be difficult for some members to know what further amendments to move or how to vote on a subsequent section. Should members wish to revisit an amendment that has already been either passed or defeated, unanimous consent would be required. Should unanimous consent not be forthcoming, members may always revisit an amendment during committee of the whole consideration.

3. Pursuant to the order of the House dated 28 May 1992, all proposed amendments shall be filed with the clerk of the committee by 4 pm on the day prior to the last day on which the committee is authorized to consider the bills clause by clause, that is, by 4 pm on 15 September 1992. At 4 pm on the last day, 16 September, those amendments which have not been moved shall be deemed to have been moved, and I shall interrupt the proceedings and shall, without further debate or amendment, put every question necessary to dispose of the amendments and the bills. Given that the rules of the House on deferred votes do not equate to committees in this context, I will at the time of the vote entertain no more than one standing order 126 request for up to a 20-minute recess per bill for the purpose of bringing in members for the vote.

4. Should we conclude our deliberation on a bill prior to the expiration of the time limit for that bill, I will entertain an adjournment motion to the next day. We will not proceed to the next bill for the simple reason that we may not be in possession of all amendments and we may not have the appropriate ministry personnel in attendance.

I think that all members are in agreement that there is a desire to allow the fullest debate on all amendments, and the Chair will endeavour to conduct the committee proceedings to achieve this objective.

It is also my understanding that members have informally agreed to one five-minute opening statement per caucus at the beginning of the consideration of the first bill. We will begin with the government, then the official opposition and then the third party.

In addition to this, we have reached agreement that being as we've just received all the opposition motions for amendments, we won't be voting on any amendments today. We will have them deferred till tomorrow so that the ministry people have a chance to look them over tonight, because it's my understanding that none of these amendments are frivolous, and they shouldn't be taken lightly.

So if we could, can we have an opening statement from the government?

Mr Gary Malkowski (York East): Thank you very much, Mr Chair. It's my great honour and pleasure to be able to make an opening statement here for the Minister of Citizenship, Elaine Ziemba, on behalf of the government. I think that this is a critical and very important occasion to be able to open this debate on the Advocacy Act, Bill 74, and the amendments pertaining to that.

At this point, it's important that we remember those individuals who will be directly affected, those vulnerable individuals who for the last 20 years have not had their concerns addressed. I'm sure that the rights, respects and wishes of those individuals are something that we all want to make sure are taken into consideration.

We also have to consider the family members and care givers who also have brought concerns to us in regard to the protection of vulnerable individuals in hopes that they will in fact be protected against neglect and risk or abuse of any form. It's important that we do provide these people with the opportunity to live an autonomous, independent life with dignity in a free fashion as much as possible in society. I think our agenda is definitely to make sure that this legislation becomes a reality.

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I want to thank the previous governments, both the Liberal and Progressive Conservative governments, which began work on this issue and have worked towards helping vulnerable individuals attain autonomy and freedom of choice and respect and dignity in society. We're here today to continue to listen to the Progressive Conservative and Liberal members, as well as the government members, as we discuss important amendments.

I know that my minister is anxious to hear from the opposition parties on possible amendments and ideas to make sure that in fact we are able to work together. I think that our goal is definitely to work in cooperation as a means of providing the best type of policy and legislation in a democratic fashion that will in fact respect the rights and needs of vulnerable individuals and to make sure that equity actually does occur.

In saying so, I also again want to say that it's important that we not only protect the rights of vulnerable individuals, but we consider the needs of family members and care givers. It's important that we offer support to people to make sure that autonomy actually does occur. I'm very proud to see that our government has established this legislation and that the Advocacy Act is in fact moving forward. We look forward to seeing this legislation in place.

I encourage all of the members, government members and opposition members, to remember that we should be working together in order to have successful legislation that will benefit those most vulnerable individuals in society, people who have in fact been struggling to find autonomy and to have their needs met.

At this point also, I'd like to remember Father O'Sullivan and the report that he wrote that talked again about the incredible need to have legislation in place to be able to protect vulnerable individuals from abuse and neglect in society. Those are some critical guidelines that we, I think, must follow.

In closing, I would like to again say that it's important that we also see ourselves as friends of vulnerable individuals and work together to that end and that during these discussions and debate on amendments, we do work cooperatively and listen to each other in order to produce the best legislation possible. We definitely have to consider ourselves friends of the people we hope to protect.

The Chair: For the official opposition, Mrs Sullivan, your opening statement.

Mrs Barbara Sullivan (Halton Centre): Thank you, Mr Chairman. I'm not sure if I will go over the five minutes or under the five minutes, but I hope you will indulge me if I am slightly over time.

For several months, we have been considering the four bills, Bills 74, 108, 109 and 110, which are all interconnected and intensely interrelated. Furthermore, those bills have enormous implications for every individual and family in Ontario. Further than that, every health care practitioner and institution will be affected. Many educational settings, social service agencies and community organizations will have to work with new rules and new parameters.

What is deeply disturbing to me is the lack of care and attention that the government has paid to these bills. Ministers have not shown up other than to make opening statements that were clearly written by others, and in the few questions that they deigned to answer, it was evident that they had little knowledge of the policy or implementation implications of these bills. To my mind, this is a grave dereliction of duty on the part of the Minister of Citizenship, who had the lead on these bills, and her colleagues the Minister of Health and the Attorney General.

To say that both policy thought and drafting have been negligent is evidenced by the 199 amendments which were brought forward by the government. Were it not for our insistence that new public hearings be held, there would not have been the benefit of knowing that even with those amendments, there were serious flaws, indeed dangerous flaws, in these pieces of legislation.

I want to speak personally for a second. I worked very hard on these bills, and there were several reasons for that. First of all, I'm critic for the Ministry of Health, and the public policy implications of codifying the consent to treatment laws are singularly important in that field. As an individual and a politician and a legislator, I am eager and supportive of measures that will protect people who can't protect themselves and to encourage the expression of will of those who most people don't believe or haven't even thought about having will.

Given the government's policy determination, I believe it was important to ensure that the legislation I as a legislator was a part of formulating was useful, was practical, and enhanced rather than negated the quality of people's lives. My colleagues in my party and in the opposition in the third party have also put extra effort, it seems to me, into the consideration of these bills for the same reasons.

In the course of the legislative process, I've been panic-stricken at times. If we think back to the first round of hearings, we will recall some of the stressful situations which were raised before this committee.

I saw that people who were injured or in pain perhaps could not have timely access to medical treatment. I saw that people who were not able to cope with some things might be judged as not able to cope with all things. I saw that the balance of rights was being skewed.

I saw a burgeoning bureaucracy, at enormous public cost, with little accountability. I saw families being put into an adversarial position, with new processes and intervenors adding new stresses, costs and fear. I saw doctors, dentists, nurses, hospitals, nursing homes, people who teach vocational courses and many others being seen as enemies. I saw a broad-reaching legislative focus that captured every resident of Ontario perhaps, instead of those who most needed help.

Assuredly, the government has made changes, but those changes only came when people by the score appeared before this committee, at enormous cost of time and money, to say that what had been put forward was unworkable, that it hadn't been thought out, that the implications hadn't been explored. Those people knew this committee was working under an artificial time frame imposed by the government that is nothing less, to my mind, than irresponsible.

Many of the people who came before us apologized that they weren't able to afford legal counsel to assist them with their analysis of the legislation, and many of them engaged counsel in lengthy and costly scrutiny of the provisions of these bills.

In my time in this House, I don't remember an effort that was so assiduous, so demanding, so well documented and so well prepared by people and organizations. I want to commend everyone who was a part of the public process that we've been involved in, but I can honestly say that I'm personally embarrassed by the government incompetence that has been shown throughout these proceedings.

The government, however, is clearly determined to move ahead. To suggest that these bills, with myriads of amendments from government in the first instance and from opposition party representatives in the second, can be dealt with in clause-by-clause committee review in seven working days is ludicrous, but those are the constraints that have been put on us by the government.

I sincerely don't believe that the government has any notion of the depth of concern and unease that accompanies these initiatives. Too many things are unknown, despite the complexity of the legislation. We don't know when a person has to give consent to medical treatment or to what kinds of medical treatment. We don't understand why, by example, a physician would require the consent of a patient to do a pelvic examination in a hospital, perhaps, but that physician may not require the consent of a patient to do a pelvic examination in the physician's office.

We don't know what an advocate can or can't do by law. We don't understand why, when the government is establishing a new profession, it can't define the scope of activity, the training, the code of ethics and the standards that will apply to people in that profession, who will have highly interventionist roles in other people's lives.

We don't know if the government will require hospitals and nursing homes and other institutions to provide round-the-clock rights advisers at their own expense and without expanded government funding. We don't understand how that requirement will square with the government's head-nodding at the independence of the advocate from the provision of services. We don't know the qualifications of an assessor who will decide if a person is mentally capable of making various decisions. We don't understand if the government intends that they should be medical practitioners only or if they could be social workers, lawyers, teachers, dentists or nurses. Most of all, we don't understand why the government is in such a rush.

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Surely, we all need time for a considered analysis of the proposals in these bills. We all need time to review more thoroughly how they will affect the average 16-year-old, the average 40-year-old and the average 70-year-old, and we certainly need time to review how they will affect the person who isn't average. We also need time to learn how they will affect families, hospitals, doctors, nurses, midwives and group homes and many others.

Groups, organizations, agencies and individuals are calling on the government to slow down the process, to exercise caution in drafting regulations and to involve all the stakeholders in that process. I couldn't underline more how much I agree with those who are making those demands. Time, thought and scrutiny are needed. One leap forward in the case of these bills, I fear, could in many cases be a giant leap backwards.

We will be presenting many amendments to the bills in the course of clause-by-clause consideration. None of those amendments is frivolous. All of them have been discussed with stakeholders and honed according to their advice. Some recommendations which we would have liked to put forward have not been included as amendments, because there was inadequate time and discussion of the implications of those initiatives. Medical research issues, by example, are inadequately covered under these bills, but were not thoroughly explored in the time we had available either in public hearings or in prior and later consultative sessions.

As well, other issues that have been before us have not been satisfactorily resolved. We've heard from people who deliver health care services to young adults and children, and they've stressed to us that in certain circumstances it's vital to allow a young person to seek independent and private medical advice and counsel in a number of areas. We've also heard from children's aid societies and youth workers that age issues are integral to their statutory mandates and service delivery requirements.

We can see that the government has introduced rights advisers in all cases where children are more than 12 years of age if the child is considered incapable of providing consent to a treatment. As a committee we asked, with all-party agreement, for a full statement from counsel for the government with respect to the matter of age. The government has withheld that analysis from us.

As a committee we asked, with all-party agreement, that the ministers who are responsible for this legislation sit in clause-by-clause consideration. The ministers say they're too busy; they're going to a retreat.

If I sound angry about those two issues in particular, it's because I am angry. If we're to do our job as legislators, we're entitled to the information we require, when we require it. If I sound cynical, it's because I am cynical. I personally don't believe that the Minister of Citizenship or the Minister of Health or the Attorney General have any idea what is in these bills, nor what the implications of these bills are, nor what disruptions will be caused by their implementation, nor what the costs are to governments, to agencies, to health care facilities and to individuals.

I further don't believe that the ministers understand the import of a consultative process with stakeholders in relationship to the formation of the regulations under the act. If I sound surprised, well, I suppose, why should I be? The ministers have paid very little attention to this legislation all along.

The Chair: Thank you, Mrs Sullivan. Opening statements for the third party.

Mr Norman W. Sterling (Carleton): I had understood that we were going to have an opportunity to say a few words on each bill, and therefore have really only prepared myself with regard to Bill 74, the one we're dealing with today.

I'd first of all like to thank Susan Swift of the committee, who has put a lot of effort into giving us a summary of the various presentations which have been put forward by a whole number of groups. Lisa Freedman has done an excellent job in coordinating witnesses, and we have been able as a committee to say to most groups, "You've had the opportunity to be heard." I'd also like to thank Laura Hopkins for her help in drafting some of our amendments as legislative counsel.

Secondly, I'd like to thank the many groups that came in front of us, because this and the other bills cover very substantial issues, very important issues, critical issues to vulnerable people and to our health care providers in particular.

I found that almost universally the groups had prepared themselves well, knew what the bills said, and were very much concerned with the contents of those bills. I only wish the ministers of the various ministries who were responsible for these bills exhibited the same kind of knowledge and the same kind of feeling towards these bills.

Unfortunately, when we opened these hearings back in the early spring, the Martel affair was occupying the news media at that time. I think it's unfortunate for the people of Ontario not to be alarmed about what these bills might or might not do to their future health care and the future intrusions that these bills bring forward.

We have, as a party, tried to be as constructive as possible in dealing with these bills. We have agreed to scheduling these hearings. We have agreed to scheduling the third reading debate and the committee of the whole House after this bill returns to the Legislature. We agreed to the timing, unfortunately, before hearing a lot of the public hearings during this past summer. I do not know whether it is really prudent for the government at this time to continue on that timetable. We will have to do that because we have given our word and, of course, it's included in terms of the timing of the motion and is locked in at this point.

I only say to the government that it might be very wise to go to the opposition House leaders and ask for more time, considering the hearings we had this summer and the very many concerns with regard to this legislation during that period.

We continue to be concerned over the cost of the Advocacy Commission. We're concerned because the $30 million that has been estimated to put the commission together does not provide for vulnerable people in this province one more bed, one more meal or one more treatment to alleviate pain or distress to that vulnerable person. In other words, we are not convinced even at this point that the Advocacy Commission is going to improve the lives of vulnerable people as much as if we took that $30 million and put it into social or health care services which these people so desperately need, as was given in evidence before this committee.

We also have concerns at this stage of our hearings with regard to the Advocacy Commission and its appearance as a very intrusive force into both the private lives of the people of Ontario and into our public lives as the people of Ontario. We are concerned over the extreme powers that an advocate possesses under this act to influence an incapable or a vulnerable person, even if that vulnerable person is perhaps not requiring those services or wanting those services.

We are concerned that the Advocacy Act says to our people who provide our health care services, who provide our social care services, "We don't trust you; we need these people looking over your shoulder," when there hasn't been any kind of overwhelming evidence that our public servants, our health care providers, are in any way on a consistent basis or even on a minimal basis abusing vulnerable people.

We are concerned over the lack of thought as to what an advocate really is to be. We do not know yet what educational qualifications are needed to be an advocate and, above all, we don't know what kind of controls or code of ethics the advocates are going to operate on. We do know that this commission, as set up under Bill 74, is indeed going to be a very powerful body which is, in essence it seems, accountable to no one.

We are also very much concerned about the intrusion of the advocate into the family unit and the friends of a vulnerable person. We are very concerned that with the Advocacy Act, because of these lack of definitions of what an advocate is to be and who controls that advocate and the total lack of a discipline process within this act, the potential for conflict between the families and friends of the vulnerable person is great and almost inevitable.

Last, I must echo some of the sentiments of Ms Sullivan with regard to her concern over the feeling, as an opposition member, of the competency of the government in putting the pieces to this very difficult puzzle together.

I have not felt, as an opposition member, during these hearings that there is a concerted effort on the part of the ministers of this government, who are responsible for Bill 74, who are responsible for Bills 108, 109 and 110, to have their act together. I am not confident that they have thought through what these acts are going to do for the ultimate -- and which we, as politicians, all must have -- better treatment of our vulnerable people or the people who cannot make decisions on their own.

I think this act is being driven or it appears to be driven from outside. It appears to be driven by a subjective goal rather than an objective goal. I believe the government of Ontario should be trying to reach a conclusion in bringing forward legislation in this area, if it so chooses, in a balanced and even manner which will in fact bring better treatment to our vulnerable people.

We will continue to act in a constructive manner as best we can. Although we have great concerns about Bill 74, we have put a fair amount of time -- in fact, a great deal of time -- in putting forward amendments to this bill in order to try to remedy it as best we can, even though we will probably remain opposed to it even in an amended form. But that will be for us to decide at a later date, after the amendments have either been received or rejected.

Mr Chairman, thank you for your patience. As well, I want to commend you with regard to your impartiality to date with regard to dealing with these bills.

The Chair: Thank you, Mr Sterling. Thank you, all members, for your opening comments. In fairness to the clerk, until we can get everything organized, this committee will stand recessed for five minutes.

The committee recessed at 1424.

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The Chair: I call this meeting back to order. All members now have, basically, what we call a road map to follow as we go along. The "GR" is government reprint, which means it doesn't have to be moved; "GA" is a government amendment, which will have to be moved by the government; "L" and "PC" are self-explanatory and they will have to be moved.

With the indulgence of the committee members, to save time, the Chair will not repeat motions, because this is going to be fairly lengthy. Perhaps we could get started.

Mrs Sullivan: Mr Chairman, I don't think we have copies of the newest government amendments.

The Chair: You should. There were three or four.

Mrs Sullivan: I have three, but I understand there are more.

The Chair: There was a package sent to all committee members' offices on Friday.

Mrs Sullivan: Oh, so we don't have another clean copy of them.

The Chair: No, we don't.

Mrs Sullivan: Okay.

Section 1:

The Chair: If we could, on Bill 74, clause 1(a), any questions or comments?

Mrs Sullivan: Just a clarification as to process: By example, the first amendment put forward by the government, which is printed in the bill, refers to a whole clause, whereas the second amendment put forth by the opposition refers to a subclause of the same clause. What will be the process of dealing with that? I understand that today we're just discussing them, but I'm just wondering how that process will work.

The Chair: The motion will have to be moved at that time. When we go to clause 1(b), you can move your motion then.

Mrs Sullivan: When we vote, if, by example, we are voting on 1(b), how do we deal with 1(b)(ii), which is the second amendment?

The Chair: We'll let the clerk go with this one.

Clerk of the Committee (Ms Lisa Freedman): Essentially what would happen is the government reprint 1(b) would be moved first, and it appears in the reprint. Clause 1(b)(ii) is an amendment to that amendment. It gets moved second but debated first. First of all, you need what's in the section. Your amendment has been drafted in a such a way to amend what they originally had, so that appears as an amendment to the amendment. Yours would be voted on first, because if yours passes, theirs would then subsequently incorporate that amendment.

Mrs Sullivan: If the government has a new amendment that is before us today, not the ones that have been reprinted, and there's a similar situation, how will that be dealt with?

Clerk of the Committee: I think the way we have this road map we've tried to incorporate that. If we hit that situation in a section, we will deal with the broad motion first, and any amendment that amends something within the broad motion would be an amendment to that amendment and would be moved second but debated first.

Mrs Sullivan: Thank you.

The Chair: Questions or comments on clause 1(a)?

Mrs Sullivan: I have nothing on 1(a).

The Chair: Clause 1(b)?

Mrs Sullivan: I just want to confirm with the clerk that in 1(b)(ii) of the government amendments there's a misprint and that it will be corrected.

The Chair: It will be corrected editorially.

Mrs Sullivan: Fine.

The Chair: Would you care to move your motion?

Mrs Sullivan: Should I move now, or just discuss?

The Chair: Move it, and then we'll defer the vote till tomorrow.

Mrs Sullivan moves that subclause 1(b)(ii) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"(ii) to help individual vulnerable persons who are incapable of instructing an advocate, if there are reasonable grounds to believe that there is a risk of serious harm to the health or safety of those persons, and."

The Chair: Comments, discussion?

Mrs Sullivan: Yes. Basically, this is really a drafting amendment to ensure consistency with other sections of the bill which require the advocate to act on the reasonable grounds of harm to the health or safety of those persons.

The Chair: Further questions, comments?

Mr Sterling: We agree. For consistency, it probably makes sense.

The Chair: Thank you. Seeing no further questions or comments, clause 1(c). Questions or comments? Clause 1(d)? Clause 1(e)? Clause 1(f)?

Mrs Sullivan moves that clause 1(f) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "support for the security" in the third line and substituting "support for the rights, needs, security and wellbeing."

Mrs Sullivan: This recommendation was put before us, particularly by the Ontario Friends of Schizophrenics, to ensure that the support of willing and able friends and family is, in the area of ensuring the rights and satisfying the needs of vulnerable persons, accorded the same responsibility as the work of the advocate. The addition of rights, needs, and wellbeing into that section enables the family to serve as advocates to the full extent of the person's requirement.

The Chair: Thank you. Mr Wilson.

Mr Jim Wilson (Simcoe West): Yes, Mr Chairman. We have agreement on this Liberal amendment also, and it might be helpful if the government members would comment as we go along; then we'd know where we stand in the voting tomorrow. I want to know how long I have to stay out in the lobby.

The Chair: Comments? Mr Winninger.

Mr David Winninger (London South): If you want to go back for a moment to subclause 1(b)(ii), it seems to me that inserting the phrase "reasonable grounds" provides for a "reasonable person" test, and I don't see anything objectionable about that. It might prevent people from making subjective assessments. They would be required to invoke a reasonable person test, and the latter amendment, from my point of view, is certainly a desirable one because it expands a little on the original wording of clause 1(f) and certainly accedes to the request of one of the presenters.

Section 2:

The Chair: Mrs Sullivan moves that the definition of "vulnerable person" in section 2 of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"`vulnerable person' means a person who, because of a moderate to severe mental or physical disability, illness or infirmity, whether temporary or permanent,

"(a) is unable to express or act on his or her wishes or to ascertain or exercise his or her rights, or has difficulty in expressing or acting on his or her wishes or in ascertaining or exercising his or her rights,

"(b) does not have another person who is appropriate, able and willing to assist him or her in exercising his or her rights, in expressing or acting on his or her wishes or in ascertaining or exercising his or her rights, and

"(c) is in a position in which there is a risk of serious harm to his or her health or safety."

Mrs Sullivan: The amendment that's proposed is designed to ensure that those people who are most vulnerable are the people who receive the advocacy services that the bill provides for. It eliminates the assumption that any person who is disabled is vulnerable or has no assistance or has made no determinations, by example, about the kinds of assistance that that person wants.

It includes, by inference, families, the friends -- the power of attorney or the guardian who is able to work with the person and assist in obtaining rights and in ascertaining those rights. I think that strengthens the role of the advocate to deal with the person in our society who is most vulnerable.

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The Chair: Thank you. Further comments, questions? There is one mistake on the road map. Mr Sterling.

Mr Sterling: We have some support for this. We also have our own amendment there with regard to "vulnerable person." I'd like to hear how the government reacts to either of them.

Mr Malkowski: At this point I just have to clarify that at times, if I have looked down just to take a look at the motion, I am unable to attend to what the interpreter said. So I missed what you said, Mr Sterling. Could you just repeat that last comment? I was looking at my page at the time.

Mr Sterling: I'd like to put forward sort of on the table both amendments, the one we're putting forward and considering the Liberal one, and see what the government's reaction is to either.

The Chair: Would you like to move your amendment first, Mr Sterling?

Mr Sterling: Have you finished, Barbara?

Mrs Sullivan: I've finished with my motion and my discussion, so I guess it's in order.

The Chair: If you would move your motions, Mr Sterling, then we could discuss them all together.

Mr Sterling: Okay. The first amendment I put forward -- and I'm not moving it -- was just for the sake of clarity.

I move that the definition of "vulnerable person," as set out in paragraph 5 of section 2 of the bill, be amended by deleting the words "moderate to severe." I wanted to elongate that, so if the committee will bear with me, I'm going to add some words to the end of that.

The Chair: Mr Sterling moves that the definition of "vulnerable person," as set out in paragraph 5 of section 2 of the bill, be amended by deleting the words "moderate to severe" and substituting therefor the word "substantial."

Would you like to explain that?

Mr Sterling: Yes. Basically, I believe it's a better definition. If we are going to have an Advocacy Commission, I don't know what "moderate to severe" means. It seems to cover every perceived kind of disability that a person might have, and in my view, regardless of how much it has, the commission is always going to be limited in the amount of money it has. Therefore, I would like them to give priority to those people who have a greater disability than those with a lesser disability. So it will allow, in my view, then the opportunity to make that prioritization in giving services.

Mr Malkowski: There are two points or comments I'd like to make in relation to that motion. First, in terms of the terminology "moderate to severe," that term has been recognized by the federal government and Statistics Canada and, as you know, the Ontario Human Rights Code, the amendment explaining the definition of vulnerable people when looking at the perception of actually having a disability, infirmity or illness or the perception that someone has a disability, whether or not it can actually result in the individual's having specific difficulties with the exercising of his own rights.

Mr Sterling: Mr Chairman, I don't feel very strongly about this amendment, so I'll withdraw it.

The second amendment I have is on the same section, on the next page.

The Chair: Mr Sterling moves that the definition of "vulnerable person" as set out in paragraph 5 of section 2 of the bill be amended by deleting the words "and whether actual or perceived."

Mr Sterling: During the hearings, I asked counsel why these words were added, as I believe they were added when the government brought forward its amendments to this bill. Again, it is somewhat the efficiency argument, that the Advocacy Commission or an advocate should be chasing real problems and not perceived problems and that they should be able to distinguish between the two. I heard the argument that this was some kind of United Nations definition, and I don't think that makes much sense when dealing with real problems of real vulnerable people.

Mr Malkowski: To respond to that, the Ontario Human Rights Code has a very clear definition of what a vulnerable individual is and does include that definition.

Mrs Sullivan: I want to say that our party concurs with this motion; indeed, it is integrated into the motion I put forward under section 2.

Mr Paul Wessenger (Simcoe Centre): I would like to make some comments about eliminating "and whether actual or perceived." Mr Sterling, I don't know whether you were here, but we had before us People First, who indicated the necessity for that language, that the people who are developmentally handicapped are often perceived as being unable; that it isn't an actual disability, but a perception of the people who will not listen etc as a result of their perception of the person having an inability. So they felt it was very important that the words "and whether actual or perceived" remain. It seemed quite a compelling argument that they put forward, so I thought I should indicate that.

The other aspect I have some concern about -- I don't know whether I should speak to the Liberal amendment at this time -- is clause 2(c) that adds, in the definition of "vulnerable," the risk of serious harm. It would seem that the risk of serious harm would be the test for intervention rather than the test for defining who a vulnerable person is. Surely a person is vulnerable whether there's a risk or not, so from a legal point of view, I don't think it's appropriate to have that incorporated in the definition of "vulnerable."

Mr Winninger: I share Mr Wessenger's concern about deleting the phrase "actual or perceived." There may be situations such as the notable one involving Justin Clark where, through inability to communicate, the vulnerability was perceived rather than actually expressed.

Another concern I have about Ms Sullivan's amendment relates to clause 2(b). The first phrase, "does not have another person who is appropriate," is certainly an addition to our definition, and I'm not so sure that doesn't severely limit access for vulnerable people. There may be other people in their universe who are appropriate, who may be able and perhaps willing to assist, but that shouldn't exclude that person from the category of vulnerable.

A third concern is clause 2(c), which places a fairly high test for vulnerability; it suggests there has to be a risk of serious harm to his or her health or safety. Through the presenters, we've heard of many more marginal cases of vulnerability that certainly wouldn't meet that test, and these people would likely go unprotected if this machinery in our legislation weren't invoked because they weren't defined to be vulnerable.

Perhaps we'll hear from other government members, but my desire would be to have this section stood down for further consideration by the ministries.

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Mr Sterling: What was your first objection?

Mr Winninger: The first related to the phrase "actual or perceived." I think it's a more embracing definition of vulnerability than were it just to say "actual infirmity or disability or illness."

Mr Sterling: So if "actual or perceived" were put into Mrs Sullivan's, and (c) were out --

Mr Winninger: I would still have a problem with (b), which requires that there not be "another person who is appropriate, able and willing to assist."

Mr Jim Wilson: I have a question dealing with (b) also. Perhaps legal counsel can give us an opinion on whether it's appropriate to put that. I understand and appreciate what Mrs Sullivan is doing here in trying to protect the role of family members, as an example, but I just wonder if it's appropriate in a definition when other parts of the bill deal with who is an appropriate person.

Ms Jenny Carter (Peterborough): I'd like to say that I think (b) and (c) are ill advised, because they do in fact limit the applicability of the act, as has already been said. The point is that we're looking at satisfying the wishes of the vulnerable person, and although there might be an outside perception that there's somebody else who is assisting that person, if he or she doesn't feel they are helping to interpret his or her wishes, then that should not be set up as a barrier.

Similarly, the problem they have may not be sufficiently serious to qualify under (c), and yet that should not be a reason why they can't in fact have their wishes attended to. It might be about something that appears relatively trivial but actually does matter a great deal to that person. So we don't want those kinds of limits put on the act.

Mrs Sullivan: I wonder if I could have a further understanding of the actual policy objection to (b). What we are looking at, in the case of including that clause, is a person who is unable to express or has difficulty in expressing his or her wishes, is unable to ascertain or has difficulty in ascertaining his or her rights, is unable to exercise or has difficulty in exercising his or her rights. That same qualification applies to all people I'm now describing as vulnerable. If a person is alone in that situation, surely that is the time when the advocate is most needed and when the advocate should be involved in intervention. If a person has a parent who is working as a personal advocate, if a person has a power of attorney for personal care -- and that person has in fact provided the consent and the direction in terms of setting up that power of attorney -- if that person is incapable under the Consent to Treatment Act or the Substitute Decisions Act and for other reasons has a guardian or a partial guardianship in particular, that person has someone who meets those qualifications and who is able and willing to help that person exercise his or her rights and express the wishes, ascertain those rights. In fact, in those situations, I think the important words are "to assist." We've had many discussions about supportive decision-making. Indeed, that is what that section is about. There's also an implication of the determination of the person himself or herself in deciding who it is who is available, willing, able and appropriate to assist that person in exercising those rights and determining those rights.

I do not understand the policy objections from the government members as they've been expressed, when what we're looking for here is a definition of who in our society really needs help to determine those rights, to exercise those rights, to achieve access in various places, in various ways. It seems to me that this is the place where we should be starting.

I hear Mr Wessenger's point with respect to clause (c), that in fact this may be a more appropriate description of the cause for intervention than part of the definition. That is a reasonable argument and in fact that is where it's included later on in the bill. But I do not understand the policy difficulty of the government with respect to the appropriate, able person.

Mr Jim Wilson: Ditto Mrs Sullivan's remarks. We're very supportive of this clause, but I'm just wondering if the word "appropriate" may cause some problems down the road, should someone challenge that before the courts, because it is a fairly general concept. Does legal counsel have any thoughts on that?

Ms Laura Hopkins: The word "appropriate" is quite flexible. In deciding who an appropriate person would be, a court would have to take into account the other statutory rules governing who can give consent on a person's behalf.

Mr Jim Wilson: That clarifies that.

Mr Winninger: I just need to clarify a point with Ms Sullivan. If I tell you I'm a vulnerable person and I also tell you I have a family member who's been acting on my behalf for a long time and I agree that he or she is appropriate, able and willing to assist me but I would like someone with training, with expertise, who's accountable to this new Advocacy Commission to represent my interests as an advocate, your amendment to the definition would preclude that.

I would suggest to you that if your real intent is to restrict access to advocacy services where there is someone else involved, you might be better to look at section 7. I don't necessarily agree with such an amendment, but it flows more logically out of section 7, rather than in the definitional section.

Mr Malkowski: Just responding to Mrs Sullivan, I think the real issue here is that we're talking about the vulnerable individual having freedom of choice, and that's a personal choice for autonomy. If, for example, there is a family member who is identifying needs and has worked in terms of providing advocacy and the vulnerable person wants that family member to continue to act, there is certainly no difficulty in that, but there is a personal choice involved: that if the vulnerable individual wants an advocate, that should be there. It's definitely a personal choice issue.

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Mr Sterling: I just say in response that if a vulnerable person and his or her family member wanted the assistance of the Advocacy Commission, it's easy enough for the family member to say that he or she is not willing to assist and then the Advocacy Commission would kick into effect.

You're assuming that there is no conflict here, and I guess that's the problem. In an Alzheimer case, an advocate gets thrown into the mix, and the family member who is trusted by everyone is saying --

Mr Jim Wilson: "I'm second fiddle."

Mr Sterling: "I'm second fiddle in the care of my brother," or mother or whatever, so I don't see the same kind of objection as you do. If the family member said, "I want the help of the agency," which I would assume he would if in fact he were getting nowhere and were able and willing to act -- if that was appropriate, then that would happen, wouldn't it?

Mr Winninger: Just briefly, you made two points. You raised the issue of a conflict between the vulnerable person and the family member. Clearly, we're trying to accord as much autonomy to the vulnerable person as we can. I would suggest that if I were to buy into your argument, that would require the family member, along with the vulnerable person, to decide whether or not an advocate should be involved.

Secondly, as a result of the convincing submissions made during the hearings, we have beefed up the sections that require advocates to work with family members. So I think that we've gone a long way towards meeting that concern.

Mr Sterling: I didn't say a conflict between the vulnerable person and the family member; I said a conflict between the advocate and the family member.

Mr Winninger: Once you get to the advocate stage. But if Ms Sullivan's definition remained as it was, you wouldn't necessarily invoke an advocate in this situation, because that person wouldn't be a vulnerable person to start with.

Mr Malkowski: Again, when we look at family members and the vulnerable individual, certainly if the vulnerable individual wants an advocate, that needs to be a choice available. It's important that the act points out -- and that we recall when we're talking about the act -- that there are cases where family members have abused vulnerable individuals. I'm saying that there are some cases where that happens. The issue is that there has to be personal choice available for any vulnerable individual in order to avoid any type of conflict from developing.

Mr Sterling: That, in theory, sounds appropriate. Isn't that covered in (b)? If there's a conflict in the family between the vulnerable person and the family member, then it's not appropriate.

Mr Winninger: What's not appropriate?

Mr Sterling: Representation of the person; that's what "appropriate" reads to me.

Ms Carter: That's subjective. Somebody else might say it was appropriate, and the person himself might not think so.

Mr Jim Wilson: Well, the whole thing's subjective. In part (a), if you're able to ask for an advocate, then are you vulnerable? You're able to express your wishes; along the same logic.

Section 3:

The Chair: We'll go on to subsection 3(1). Comments? Subsection 3(2).

Section 4:

The Chair: Mrs Sullivan moves that section 4 of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"Minister

"4. The member of the executive council who is designated by the Lieutenant Governor in Council shall administer this act."

Mrs Sullivan: In commenting on this particular motion, this is really one of practicality. We know that governments change and the structure of governments change, and even the names of ministries change. By eliminating the specific reference to the designation of the Minister of Citizenship, that will allow the restructuring of cabinet responsibilities or even the renaming of cabinet responsibilities without reopening the bill. It's a very practical matter and I think one that's useful.

The Chair: Further comments? Mrs Carter.

Ms Carter: I appreciate your point about the restructuring of cabinet, but I think there was a reason here for designating the Minister of Citizenship, which should be kept in mind and not lightly thrown aside, and that is, we want all this to be very much at arm's length from government and not specifically to come under ministries like Health or Community and Social Services, which are big administers of care that vulnerable people receive. So there was a rationale to this and I think we should think carefully before we disregard that.

Mr Jim Wilson: I think we're supportive of this amendment. What we just heard from the government side sounds like, "Well, the Ministry of Citizenship's a bogus enough ministry so it can deal with this legislation." I don't think you meant to say that, but that's what I heard.

Section 5:

The Chair: Subsection 5(1)? Subsection 5(2)? Mrs Sullivan?

Mrs Sullivan: Just a sec. Just hang on here, Mr Chairman. I have an amendment to subsection 5(2) and I just hope you'll bear with me while I get everything together here.

What I think we've been struggling with as we've gone through the makeup of the commission -- can I speak to subsections 5(2), 5(5) and 6(1) at the same time?

The Chair: Sure. That'll be fine.

Mrs Sullivan: These are all interrelated, and I also would like to speak to the government's motion to subsection 6(1) at the same time.

As we've gone through the hearings, we've heard from various groups and organizations some concern about the nature of the commission's representation, people being left out, people being included, people who felt that the category should be changed, which I think comes up in a later amendment.

In terms of these four sections -- and I'm going to speak about the government amendment too to subsection 6(1) -- what we feel is that to ensure there is appropriate and adequate representation the commission should be really comprised of a chairman and 12 other members, to make a commission of 13 members.

The change to subsection 5(5) would require the government to make an order in council, replacement of a member if a vacancy occurs. In subsection 6(1), the amendment we are proposing would suggest a 13-member commission comprised of the chair, seven people who are physically or mentally disabled or likely to be -- as is in the current proposals, ie, the majority -- two members at minimum who would be 65 years of age or over, who also may be included in the prior category but who may not, and I note that the government in its amendment includes a provision for persons over 65.

We've had very strong recommendation with respect to the inclusion of organizations representing family and friends on the commission, and I've proposed that in that commission membership there should be two representatives from those types of organizations. That would leave, in the case of the entire commission, one other appointment to be made at large.

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We have really attempted to bring together the interests that have been very clear and the concerns that have been made very clear with this proposal about the nature and composition of that commission. Because we are suggesting that it be statutorily one chairman plus the 12 members, subsection 5(5) would change to ensure that the Lieutenant Governor in Council reappoints. Now there is an option of not appointing, because of the peculiarity or variation that's allowed in the size of the commission, so that's why that amendment comes forward.

I also to want to say, as we're discussing this, that I am quite concerned about the drafting of the government's motion. It seems to me that the motion implies that one must be or must have been vulnerable, or that the majority must have a physical or mental disability or be likely to have one, or that the majority has to be over 65. My view is that this is not the government's intent, but I think that's the way this amendment proposal reads. I would not be supporting it in that form.

I do believe that people over 65 should have automatic places on the commission. I do believe that people who are friends and representatives of organizations representing friends and family should be included in that commission and that, by ensuring the size of the commission, we can accommodate many of the concerns we've heard. That's why these four amendments have been put forward in the form that they have.

The Chair: Would you like to move your --

Mrs Sullivan: Oh, yes, I guess I have to do that, don't I? Shall I read them all in?

The Chair: Yes, please.

Mrs Sullivan moves that subsection 5(2) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"Composition

"(2) The commission shall consist of a chair and twelve other members, appointed by the Lieutenant Governor in Council on the minister's recommendation."

Mrs Sullivan moves that subsection 5(5) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "may" in the third line and substituting "shall."

Mr Sterling: Could we deal with just section 5 first and the other ones after that?

The Chair: Yes, we'll deal with section 5 first.

Mr Sterling: I just want to say that I sort of support the thrust of the Liberal motion, but I have a problem with the practicality of it in that sometimes it takes a little time to reappoint some people, even with the best of intentions. I don't know whether that would stymie the commission in terms of holding meetings and being able to function. That's a concern I have.

I'm satisfied that probably any government would appoint 12 people from the number of interest groups that are there. I don't know how you add some urgency to that in section 5; it's just that I don't think you can say the commission has to have 12 members appointed all the time. There has to be some flexibility in there. Maybe you want to say nine and up to 12. I just think it's a little impractical, due to death, illness or whatever might happen, that you can always have 12 members on a commission unless you have people literally in the waiting rings and you have a cabinet meeting about to happen and therefore appoint them. Perhaps before tomorrow you might want to take that into consideration.

Mrs Sullivan: I think the member has raised some of the concerns we had in putting this forward. Twelve is useful simply because of the composition. I would be interested, for instance, in saying "a minimum of 12 other members," which would provide a flexibility to ensure that kind of representation, but we might want to discuss this further. I think this is a useful recommendation, and I would be willing to adjust it so that it is a practical one as well as being a principled one.

Section 6:

The Chair: Mr Malkowski moves that subsection 6(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"Criteria for appointment

"A majority of the members of the commission shall be (a) persons who have or who have had a physical or mental disability or an illness or infirmity likely to result in a physical or mental disability; or (b) persons who are 65 years of age or older."

Mr Malkowski: The reason for this motion is that we certainly heard from public submissions and public hearings a great number of concerns that the majority of those appointed to the commission actually be themselves disabled individuals and also be seniors. So many of the people who came out to speak, of course, felt that representatives in these categories may function very well and may in fact not be considered vulnerable at that point but would be able to express their wishes and needs to the commission.

Mr Jim Wilson: I understand, Mr Malkowski, the thrust of this government amendment, but I just wondered, to what extent does a potential appointee have to have had a physical disability? If you broke your leg once and you're fully recovered? I appreciate I'm playing devil's advocate, but it does raise that type of question. To what extent do you have to have been physically disabled, for example?

Mr Malkowski: If you're discussing the definition of "disability," the people who are going to be appointed will have been identified previously from the group, and it was "moderate to severe" as defined earlier.

Mrs Sullivan: I'd like a clarification of that. Remember, when the bill was first introduced in the House, the words were "physical or mental disability." Those words were changed in the first amendments to "vulnerable," now they've been changed back to "physical or mental disability."

In response to Mr Wilson's point, I think Mr Malkowski's discussion in fact reverted back to the "vulnerable" situation where a person has been identified as vulnerable, and I don't think his response was clear to the question that was put by Mr Wilson.

I would also like confirmation, whether it comes from Mr Malkowski or from counsel, as to whether this amendment will in fact have the effect of meaning that everyone who is in the majority on the commission shall be over 65, or is it one or the other?

Mr Malkowski: I think I'll ask legal counsel to respond.

Ms Linda Perlis: I wonder if I could address those points that Mrs Sullivan has raised before the committee. First of all, we are willing to consider that there may be a drafting error in the section. It wasn't the intent that the majority of members all be of the age of 65, and we're certainly willing to redraft that section. Thank you for drawing that to our attention.

I'd like to just clarify the intent of the new proposed amendment. I realize it's somewhat confusing, because it is the second time the government has proposed an amendment to that section, and if I quickly run through the history, that may clarify the intent of the amendment.

In the original bill the requirement was that a majority of the members of the commission be persons who have or have had a physical or mental disability, illness or infirmity, and that of course would have captured virtually every single person in this room, since we've all had a physical illness. So the change was made in the first round of proposed amendments to a majority of commission members being persons who are or have been vulnerable.

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Upon reflection and upon hearing submissions, we realized that in fact some very severely disabled persons who were well able to express wishes or access rights, and therefore were not vulnerable, might be excluded from the majority membership requirement for the commission yet would have a very deep appreciation of the needs and concerns of vulnerable people.

In response to Mr Wilson's point, the intent is that the person be disabled or have an illness or infirmity likely to lead to a disability, and I don't think a broken leg in and of itself constitutes a disability. However, it could be an infirmity with particular complications that may lead to a disability.

I think the intent also in the new motion is to capture persons who perhaps, although not yet disabled, have had a diagnosis of an illness or infirmity that is likely to result in a disability through the passage of time or deterioration of their condition, such as multiple sclerosis for example.

Mr Jim Wilson: Thank you for the explanation. I knew that's what this wording is trying to get at, but I don't believe that this wording does match that intent.

Mr Stephen Owens (Scarborough Centre): Just further to the point, my question to the counsel is the definition that the word "disability" or "infirmity" turns on, maybe to add some clarity to the question Mr Wilson is asking.

Ms Perlis: I think Mr Malkowski wants to answer that.

Mr Malkowski: Sorry, it was a point of clarification I was responding to. I had thought you were talking about somebody who had actually been an amputee. You were talking about somebody who had simply broken his leg, and certainly there's a distinction between that, so I just wanted to clarify that.

Ms Perlis: I just wanted to respond to Mr Owens's question. We don't have a definition of disability in the act. However, the World Health Organization has an extensive definition of disability which will be referred to in the preparation of policy and other documents by the commission, no doubt. Also, the HALS survey, the Health and Activity Limitation Survey done of residents in Ontario, contains an extensive, detailed definition of disability which relies on the World Health Organization definition.

The Chair: Further comments?

Mr Malkowski: I think the concerns that were raised certainly are such that I think we could redraft that section to make the language a bit more appropriate and clarify that point for you.

The Chair: Further amendments to section 6? Mr Sterling? We'll try and keep it in order according to what we've got written down.

Mr Sterling: I'll put forward mine. I think when you look at the three suggestions for 6(1), they're sort of driving at the same things, and I'm not sure what combination is best to come to. Do you want me to move my amendment?

The Chair: Mr Sterling moves that subsection 6(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"Criteria for appointment

"(1) The commission shall be constituted as follows:

"1. A majority of the members shall be persons who are or have been vulnerable persons.

"2. At least one third of the remaining members shall be persons who are family members of vulnerable persons, non-professional persons who provide care to vulnerable persons or health and social services practitioners who provide services to vulnerable persons."

Mr Owens: On a point of order, Mr Chair: In terms of the parliamentary assistant's comments with respect to redrafting, is the parliamentary assistant indicating that we're going to stand this section down for redrafting, or what are we doing with this?

The Chair: Everything's being stood down until tomorrow. Go ahead.

Mr Owens: I understand it's being stood down until tomorrow, but in terms of redrafting --

Mr Wessenger: Let's stand them all down.

Ms Perlis: Before committing to a redrafting, the legislative counsel is here and I wonder if she could also just speak to the point about the confusion around the way the section is drafted and the rules for statutory interpretation, because it appears --

Mrs Sullivan: She wants to wait till tomorrow too.

Ms Hopkins: I understand completely everyone's discomfort around the way in which this is read because, as a matter of statutory interpretation, often "or" is read to mean "and." Sometimes it's read to mean "both (a) and (b)" and "(a) or (b)," and it's quite an arcane point of grammar in the statutory interpretative rules. The way in which this would be read by the arcane folks would be to understand that the majority didn't need to be either all of persons who have the disability or the infirmity or the other category, all of them being people who are 65 years of age or more.

My technical advice initially to the committee would be that the provision will work in the way in which we all would like it to, but it may be that it will be easier if we rewrite it to make it clear not only to the arcane troops but to everyone else that it works that way.

Mr Wessenger: I'd just like a point of clarification about what the redraft is going to address. I thought one of the points raised for clarification is -- maybe I'm wrong -- the physical or mental disability aspect: Would that cover the person with the broken leg or who is temporarily disabled due to an accident etc situation? I thought that was the issue we were looking at with respect to redrafting rather than the issue of the disjunctive --

Mr Jim Wilson: This is part of the overall.

Interjections.

Mr Winninger: Looking at the big picture.

Mr Jim Wilson: Don't say I don't support you.

Ms Carter: I think part of the trouble, as I understand it, is that a vulnerable person is defined as somebody who has difficulty in expressing himself or herself or making his or her wishes known. Obviously, if you had a committee consisting of those people, you'd be in trouble, yet there are plenty of people who have disabilities who can make their wishes known without any trouble. Maybe those are the ones we want on the commission.

The Chair: This whole process may be moot until we see what they redraft.

Mr Wessenger: Mrs Sullivan and myself both raised the problem of the vulnerable people definition, and that's why I --

Mr Malkowski: Just to respond to Mr Wessenger, we were talking about redrafting only that one section. It would mean a few words.

The Chair: Thank you. Back to Mr Sterling's motion. Comment?

Mr Sterling: Basically, in my amendment I have two sections. The first section tries to deal with what is contained in subsection 6(1) and, quite frankly, I have no objection to the amended definition put forward by ministry, if that serves them. I still like the old definition, which referred back to the definition section. It seems to me just easier to do it that way, but I don't mind the addition of "persons who are 65 years of age or older" as part of that majority of the members of the commission. I don't disagree with the intention of the government motion.

I would like in my amendment to guarantee, on the other side of the coin, in the minority, that there be at least a third of the commission who are within this other category. That's the purpose of my submission: if it's a commission of 12 members, that four members are family members of vulnerable persons, non-professional persons who provide care to vulnerable people or the health and social service practitioners who provide services to vulnerable persons. I would like to delete the word "remaining" out of my amendment as read into the record, because I meant "a third of the commission."

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Mrs Sullivan: In relation to Mr Sterling's motion, I think his approach is very interesting in the last paragraph. The first paragraph I think we've discussed, with reference to the inclusion of vulnerable persons on the commission. I prefer the approach of the government that the people with disability, illness or infirmity are likely to have one, rather than the "vulnerable person," which is included there.

I think the inclusion of people who provide services, whether they are health and social services or care, is also an interesting concept. My amendments don't do that -- I'll read mine into the record -- but we certainly have had representation about this and I think the government should look at the second section seriously.

The Chair: Mrs Sullivan moves that subsection 6(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"Criteria for appointment

"(1) A majority of the members of the commission shall be persons who have or have had a physical or mental disability or an illness or infirmity likely to result in a physical or mental disability.

"Representation of senior citizens

"(1.1) At least two members of the commission shall be persons who are 65 years of age or older.

"Representation of family and friends

"(1.2) Two members of the commission shall be persons selected from organizations that represent family members and friends of vulnerable persons."

Mrs Sullivan: I think I've discussed those and Mr Sterling's suggestions with reference to the variation in size. If I can be permitted to bring new motions before the committee tomorrow in that area in order to come to a compromise, I'd be delighted to do that.

The Chair: Would you like to move your alternative amendments too? Or you can wait until tomorrow, if you want.

Mrs Sullivan: Alternative 2: Do I need to do this? The government's already put forward -- I guess I'd better, just in case.

The Chair: Mrs Sullivan moves that subsection 6(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"Criteria for appointment

"(1) A majority of the members of the commission shall be persons who have or have had a mental or physical disability, illness or infirmity."

Mrs Sullivan further moves that section 6 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:

"Representation of family and friends

"(1.1) Two members of the commission shall be persons selected from organizations that represent family members and friends of vulnerable persons."

Ms Carter: I think it needs to be pointed out that we have already allowed for an advisory committee which would represent categories of people other than actual consumers. I don't see us agreeing to the latter part of either of these amendments, because I think the whole heart and core of what we're trying to do here is to have consumers, people who have the same point of view of those who are going to be the clients of the advocates, running the commission. I think to make a concession on that would be to alter the whole intent of what we are trying to do in this Advocacy Act.

The Chair: Further comments? Seeing none --

Mrs Sullivan: Well, just a minute. I hope the statement from Mrs Carter does not represent the closed mind of the government on this issue. We have agreed that these recommendations would be considered overnight, and I really hope the government will look at that proposal in a very serious way. It's included as part of the omnibus amendment, and it's included separately, because it was very clear throughout these hearings that people who are from organizations representing people who are vulnerable, who are family and friends of vulnerable people, have no place in this entire Advocacy Commission structure.

An advisory committee is not a decision-making body, cannot participate in the responsibilities and the authority that is given, which is very broad and wide-ranging, to this commission. This commission, under this act, has the power to determine who can be advocates, how they will be trained, what their duties are, how they will be disciplined, when they can intervene, whose records they can see and how and when they will determine who is a vulnerable person.

Surely to goodness, no one can believe that a vulnerable person and the issues associated with vulnerability itself can only be understood by people who are themselves disabled. Other people live with disability; other people live with vulnerability; other people, whether they're health practitioners or families, care for people who are disabled and who are vulnerable and who are having difficulty in coping with life.

Surely to goodness, there can be a place made by this government for people who desperately and deeply care for people with disabilities and people who are vulnerable. Surely there can be a place.

Mr Malkowski: I certainly recognize Mrs Sullivan's concerns as they relate to this issue, but it is important that we also heard from a great number of people -- including, for example, the Alzheimer society -- who were comfortable with the idea of an advisory committee as opposed to a seat on a commission. I think that is an important point to be made.

Mrs Sullivan: That is a quite incorrect interpretation of the position of the Alzheimer society. They came before this committee very clearly disturbed that there would not be a place for organizations representing family and friends as part of the decision-making process associated with the commission. It was only when the government indicated, as a sop to those concerns, that a little advisory committee, with no powers and with no function outlined in the act, would be stuck in that the Alzheimer association even indicated any support for that. They want to be a part of the decision-making process, just as the Friends of Schizophrenics do, just as people who care in other ways and provide services in other ways for vulnerable people do.

Mr Malkowski: What's important is that we also take a look at the record, and Hansard certainly will show that there were a great number of people who said that they supported the advisory committee, including the Alzheimer society.

Mrs Sullivan: It's better than nothing, I suppose.

Mr Malkowski: Their presentation did clearly state that.

The Chair: Further comments or questions on section 6.

Mr Jim Wilson: Mr Chairman, I want to go back to a remark Mrs Carter made. I think she was correct. In one case, I can see that there might be a problem with the definition of vulnerable persons and the sections we're now dealing with. If you're a person with a mental disability and you're vulnerable, the definitions we've been dealing with are all problematic in that to be vulnerable you have to be unable to express your wishes, so how do you serve as a member of a commission? You'd need an advocate to help you express your wishes on a commission. It seems to me it's all problematic in that area. If we go ahead with what we've got, it means people who have a mental disability, are vulnerable and therefore qualify to be majority members on the commission -- essentially, how would they function on the commission? Mrs Carter picked that up maybe 10 minutes ago.

Mr Malkowski: The government's motion addresses that by focusing on people with disabilities as opposed to only vulnerable individuals. So those people with disabilities are able to address those issues.

Mrs Sullivan: I would just like to point out, as my last remark in this area, that a person who is suffering from the advanced stages of Alzheimer's is clearly disabled and will never be able to serve on that commission simply from a functional point of view, and there would be no one representing that kind of person on the commission.

Mr Malkowski: The Alzheimer Association of Ontario said its preference was appointment to an advisory commission. That was very clearly stated.

Mrs Sullivan: On a point of order, Mr Chairman: That is not correct, and I'm going to make a formal request that the presentation of the Alzheimer association be brought to the committee before this vote is taken. That is a misrepresentation of the point of view of the Alzheimer association.

Mr Malkowski: Then I agree that we should check the record in Hansard and defer that point.

The Chair: Thank you. We'll have that before tomorrow.

Mr Jim Wilson: I just want Mr Malkowski to know that I now understand his point with regard to the term "disability" in subsection 6(1) in the government's amendment.

Mr Sterling: We basically support the amended decision over the existing decision, and I would incorporate that into my amendment as well.

Mr Wessenger: I'd like to ask for a point of clarification on Ms Sullivan's amendment. If I understand the effect of your amendment, it would change the act from the provision now that one person, perhaps, would be from organizations that represent family members and friends of vulnerable persons. If you look at paragraph 15(1)6, they have the right to nominate a member of the commission, am I right?

Mr Winninger: It's just the advisory. It's not to the commission.

Mr Wessenger: I see.

Mrs Sullivan: They're left out. I really think it should be rethought.

The Chair: Further comments or questions on section 6? Seeing none, this looks like an appropriate time for a five-minute recess.

The committee recessed at 1604.

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Section 7:

The Chair: I call this meeting back to order. We're now on section 7.

Mrs Sullivan moves that subclause 7(1)(b)(ii) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "if there is a risk" in the third and fourth lines and substituting "if there are reasonable grounds to believe that there is a risk."

Mrs Sullivan: This proposal reflects the similar criterion of reasonability that I put forward, I think, in the first amendment. I think the government and the third party indicated that they were interested in supporting that test.

The Chair: Further comments?

Mrs Sullivan: Should I go on to the next section?

The Chair: Mrs Sullivan moves that clause 7(1)(d) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"(d) provide rights advice required by the Consent to Treatment Act, 1992 and rights advice or other advocacy services required by the Consent and Capacity Statute Law Amendment Act, 1992, the Mental Health Act and the Substitute Decisions Act, 1992."

Mrs Sullivan: I wanted, in this amendment, to make a clear separation between the rights advice which is now required by Bill 109 and the rights advice and advocacy services which can be provided by the other bills. I think that if rights advice and advocacy are lumped together it's problematic in terms of dealing with Bill 109, so I thought it was reasonable to make that separation for clarity.

The Chair: Further comments?

Mr Jim Wilson: My comment on that goes back to a question I had asked one of the witnesses during the hearings. That would be that under Bill 109, where we now have rights advisers, we're unable to do advocacy services; therefore, I can see a situation where the rights adviser calls in the advocate. I think, with Mrs Sullivan's amendment, that really may not be possible, if you were to separate it as she has separated it. I know what she's trying to do, saying that in Bill 109 it only pertains to rights advice, but I think there are cases where you'd have rights advisers and advocates on the scene type of thing. Mr Fram indicates I may be wrong.

Mr Steve Fram: I think you're wrong.

Mr Jim Wilson: Well, then, if I'm wrong, I support Mrs Sullivan's amendment.

The Chair: Mrs Sullivan moves that clause 7(1)(h) of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "for the" in the third line "rights, needs."

Mrs Sullivan: This is identical to a previous amendment proposal with respect to full services and care for vulnerable people. As I recall, Mr Winninger indicated that the NDP supported that.

Mr Malkowski: Just in response to that point, I think I would have to say that we are going to stand down discussion of that at this point.

Mr Jim Wilson: Are you going to defer that discussion until tomorrow? We don't have a lot of time, so if there's work to be done on that, we kind of need to hear the government's comments now, Mr Chair.

Mrs Sullivan: My understanding was that we've had the government's comment.

Mr Wessenger: Are we on 7(1)(k)?

Mrs Sullivan: We are on 7(1)(h).

Mr Wessenger: We're not on (k) yet. I will wait with my comments.

Mr Jim Wilson: Mr Chairman, if we had agreement previously, this just brings another part of the bill in line with some previous agreement.

Mr Malkowski: I was talking about 7(1)(h).

The Chair: That's right.

Mr Malkowski: I think that's an interministerial issue that has to be discussed.

Mrs Sullivan: Could I ask why?

Mr Malkowski: It is an issue that will affect various ministries and so needs further analysis of the issue before responding.

Mr Winninger: Just for the record, I was stating my own views as a member of the government caucus on this committee. I don't speak for the NDP or for the Ministry of Citizenship, so if there seems to be a perceived conflict, I'm sure it can be resolved in the fullness of time.

Mrs Sullivan: Mr Chairman, could we assume that Mr Winninger is speaking for the Solicitor General? And if it is an interministerial issue --

Mr Winninger: No, I don't speak for the Solicitor General.

Mrs Sullivan: Or does the Attorney General support this amendment?

Mr Malkowski: On a point of order, Mr Chairman: I was trying to make a clarification before Mr Winninger began. I had said clause 7(1)(h); I should have said (d), not (h), that I was referring to on the interministerial issue.

The Chair: This is from the previous one.

Mr Malkowski: That's right.

Mr Jim Wilson: Would there be any government members who have any thoughts on (h), and would there be any government members capable of speaking for the government on (h)?

Ms Carter: I don't see any problems with it.

Mr Winninger: There you have it.

Mr Jim Wilson: That's two. Now, Paul, can we hear what you say, and Mark?

The Chair: Order, please.

Any further comments on 7(1)(h)? Seeing no further comments, Mrs Sullivan.

Mrs Sullivan: My next motion is somewhat more complicated in that it has to be read in conjunction with proposed amendments made to section 36 of the bill. I think that in view of that, I'd like to stand down this motion at this time so that it can be considered when we consider section 36.

The Chair: Agreed? Agreed.

Mrs Sullivan: That was in reference to alternative 1.

The Chair: Okay.

Mrs Sullivan moves that clause 7(1)(k) of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding at the end "and rights advisers."

Mrs Sullivan: Once again, because of the changes to Bill 109, the Consent to Treatment Act, what we will be seeing is a separation in the standards, the requirements, the duties and the obligations of rights advisers vis-à-vis advocates. As a consequence I've put this motion forward. I think it's a reasonable one and I hope that it will be accepted by government.

Mr Wessenger: Is this being stood down as well?

Mr Sterling: They're all standing down.

The Chair: No, this one has been moved. Comments?

Mr Wessenger: Yes. I have some concern about alternative 2 7(1)(k), for the simple reason that from the point of view of the Consent to Treatment Act there is a provision under that act that not only advocates are rights advisers but also there may be other designated persons to be rights advisers. I think there could be some problems created in respect to the creation of a potential accountability of rights advisers appointed under one ministry having accountability to a different ministry. I therefore would be opposed to this.

Mr Sterling: Can I ask a question on this, because I consider it the same kind of amendment, in terms of the Advocacy Commission. What I don't understand is, what is their relationship going to be with rights advisers who may be appointed or defined under Bill 109? I think they're subscribed to in the regulations under 109. What is the relationship going to be between those rights advisers and the Advocacy Commission? Is there going to be any?

Mr Wessenger: At the present time it's contemplated that rights advice will be given by advocates, but the act --

Mr Sterling: Would you repeat that? I didn't hear you, sorry.

Mr Wessenger: The apparent intention is that rights advice will be provided by advocates, but there's also the option in the Consent to Treatment Act that the ministry can designate other persons to provide rights advice, which could conceivably happen with respect to some of the large institutions. For instance, the public hospitals would be an area where you could in future conceivably have a different system of providing rights advice than under the Advocacy Commission. It's looking at possible future contingencies.

Mr Sterling: Is there not --

The Chair: Thank you, Mr Wessenger. Mrs Sullivan.

Mrs Sullivan: I think there are several amendments related to this point throughout our amendments. Frankly, there is enormous concern about this entire area. There is confusion about this entire area.

Bill 109 speaks about rights advisers providing advice required by that bill in terms of basically rights advice, process advice etc. Bill 74 deals with rights advice and other advocacy services which may be provided in association with Bill 108, with Bill 109 and with Bill 110, and that is the provision of this bill.

It is unclear whom rights advisers under Bill 109 are responsible to, where their discipline and authority comes from, who pays them. We've heard throughout the hearings, and the implication is before the committee, that the work of advocates and presumably rights advisers -- because in the original draft of these bills rights advisers were not separated from advocates -- must be separated from the institutions which provide other services, whether they're health care services, vocational services etc.

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Through the hearings on Bill 109 when the Ontario Hospital Association was before us, when the College of Physicians and Surgeons was before us, I specifically asked questions as to what their understanding was of their role in providing the rights advisers envisaged under Bill 109.

It came as somewhat of a surprise to them when I indicated that in my view, the government intended that those rights advisers would be employed by those institutions at those places, paid for not by the government. The shock from the hospital association was significant, the shock from the medical practitioners was significant.

However, because of the vagaries of Bill 109 and where rights advice will be required because of the determination of incapacity to consent, there were certainly unclear matters, and this is one of the very specific reasons we wanted the ministers attending at this table. Hospitals do not know if they are going to have to employ around-the-clock, 24-hours-a-day, 365-days-a-year personnel on their staff to provide rights advice, and if so, they don't know where the money is going to come from in order to do that. That is a big problem in Bill 109. There is no answer in Bill 109 to that question. There is no answer in Bill 74 to that question.

If rights advisers are authorized to provide information and assist people under Bill 109, how are they authorized to do that? There is no place, unless a new section under Bill 74 provides that or unless perhaps the Consent and Capacity Review Board, under Bill 109, provides for that. Neither occurs now. These are separate functions by separate people.

I agree that advocacy includes in certain circumstances the provision of rights advice. Bill 109 limits rights advice to rights advice and no other advocacy services. That was a change that was brought forward by the ministry. Who authorizes them? Who provides their training? Who provides their discipline? Who provides the standards? Who pays for them? All of these things are very unclear.

As a consequence, whether rights advisers will in fact be independent of the facilities where they are providing that rights advice, independent of nursing homes by example, independent of controlled-access residences and therefore paid for by the commission, or whether they will be a part of those facilities and institutions is unknown at this point, so there is a series of amendments here that are designed specifically to force the government to own up to what its direction is. Nobody knows.

Mr Jim Wilson: It's a very good point. I'd be interested to hear what the government has to say in response to those comments.

Mr Malkowski: Again, I think that many of these issues are going to touch on various ministries and that we need to look at this as an interministerial issue that has to be discussed.

The Chair: Further comments or questions?

Mrs Sullivan: Could I ask at least one thing? This isn't public hearing time, but I would like to ask one question. What is the policy intent with respect to the independence of rights advisers from the institutions or facilities where services are provided? I guess I have to ask that of the PA to the Minister of Health.

Mr Wessenger: The intention of these three acts being together is that rights advice be provided by advocates. However, I think it's only fair to say in drafting legislation, you want to have the flexibility to provide for other contingencies. It's clear you'd want to have that flexibility in all your legislation with respect to how you deliver your services.

No one knows whether, for instance, in the future when the need for rights advisers arises, there may be other mechanisms in health institutions that may be more efficient in delivering those services than the one under the Advocacy Commission. That is just to preserve that flexibility. There's no policy intent, I can assure you, to create a separate set of rights advisers. There is no intent to require hospitals to have rights advisers on staff etc.

Mrs Sullivan: We've had expert testimony before this committee indicating that in any hospital, not just one but substantial numbers of rights advisers would be required to fulfil the functions that would be required under Bill 109. The estimates from the downtown Toronto hospitals have been that there would not be just one needed on a 24-hour basis, around the clock, but substantial numbers, perhaps 10, 15 or 20.

How many advocates, who are going to be providing that rights advice, are going to be situated in downtown Toronto hospitals and in every other hospital around the province? Does anyone know? What about doctors' offices? What about dentists' offices?

Mr Wessenger: I think it's probably more appropriate, if we're going to get into the question of rights advice under the Consent to Treatment Act or the whole question of numbers, that it be discussed under clause-by-clause on that rather than at the time we're dealing with this act.

Mrs Sullivan: Where does their authority come from? Does it come from the commission? If yes, then let's include them in the authority of the commission. If their authority doesn't come from the commission, then let's not.

Mr Wessenger: I think it's fair to say that this is a matter that has to be resolved between the ministries with respect to the whole question of accountability of any future rights advisers. That's a matter that has to be interministerially decided.

Mrs Sullivan: How many years do you expect it's going to take you to implement these bills? If these bills are proclaimed within the next six or eight months, you are going to need rights advisers in every institution where controlled acts take place.

Mr Wessenger: I think it's fair to say our ministry does not anticipate the numbers of rights advisers required as some institutions have indicated. The way the Consent to Treatment Act has been redrafted, with the new changes, we didn't anticipate a major requirement in that regard; it would be very few.

If we look at the experience with respect to psychiatric hospitals, certainly it's been minimal exercise of rights even within the psychiatric hospitals. So I don't anticipate, and certainly our ministry does not anticipate, a major demand or need for rights advisers in the health facilities. We do not see that; we don't anticipate that.

Mrs Sullivan: The Ontario Hospital Association told us that to deal with emergency cases alone it would require not just one but more than one rights adviser in every hospital in Ontario. What about other situations?

Mr Wessenger: I think we shouldn't get into debate on the Consent to Treatment Act at this time, because my answer to that would be to refer to the emergency section, which doesn't require rights advisers.

Mr Jim Wilson: It's a very good point. When the government came back with its amendments that appear in the reprint, the Bill 109 advocates were then called rights advisers. I remember hearing testimony from a member of the Ontario Advocacy Coalition on the fact that rights advisers would probably get paid less than advocates.

I had in my mind that we had two sets of armies out there and that they were both accountable to the commission. Therefore Mrs Sullivan's attempt to make them accountable to the commission makes sense. I thought it was just an oversight on behalf of the government that we're currently trying to clear up. Now the parliamentary assistant says that advocates will provide the rights advice under the Consent to Treatment Act.

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It also figures into how many advocates will be hired; 250 was one of the figures and that went down to 125 from the government side, because the other people would be rights advisers. It seems to me there are two separate entities here -- there are persons called rights advisers and there are persons called advocates -- and the problem is, as Mrs Sullivan is correctly highlighting, that rights advisers, whoever they may be, appear to be accountable to no one, and if they are to be accountable to the commission and hired and paid by the commission, then they should appear, I would think, in this act. Hence, we support her amendment.

The Chair: Just for the record, the clerk has just handed out from the Ministry of Health a legal opinion on consent in minors.

Mr Winninger: I just want to add that I, for one, don't share the opposition members' alarm over this. I'm aware that presently there are rights advisers functioning in mental health facilities. I am aware that many of Ontario's public hospitals have patient advocates already working within the hospitals. I'm also aware that many of the public hospitals sign forms that automatically require lawyers to come in who function as rights advisers and are paid for through legal aid on a fixed sort of tariff for one hour of advice or whatever.

So there already is a system in place that's working reasonably well, and I would expect that some changes would be required. For the opposition members to say, "Well, you haven't thought about this," and, "Where are they going to get their authority from?" and, "Who are they going to be accountable to?" I don't know that the present system of rights advice requires this massive overhaul that you seem to think it does.

Mrs Sullivan: If I could, I'm going to read all of these amendments in, and I think that we need some better response than what we've had.

Mr Winninger has just made the point about people who are providing rights advice who are employed by the institutions and the facilities where that rights advice is given. The government members of the committee nodded in agreement and indeed gave vocal support to the views that were put before the committee, through the public hearing process, that advocacy services and rights advice must be independent of the facilities and the institutions in which it was given because of the conflict of interest associated with the provision of that advice and because of the difficulties faced by the employee in terms of providing advice which may put him into a conflict situation with either another employee or the facility itself.

I have asked today for a policy clarification of the intent of the government with respect to the independence of rights advisers from the facilities or controlled-access residences where the rights advice might be provided, and I have not been able to get that. I get kind of a reassurance that things aren't going to be as bad as we think they are.

There is a principle at issue here and there is a policy matter at issue here, and I want to read these amendments into the record with respect to Bill 74. I think the authority and the areas of conflict of interest which are integral to the consideration of these amendments have to come forward.

Once again, I suggest to you that we are already now in clause-by-clause. This isn't a time where, unless the government is willing to do so, we should go back into public hearings to get more advice. We're down to the decisions and nobody knows what the government's policy intent is.

I'd like to read these into the record, and I will request that the response with respect to the policy intent and direction be provided to this committee before any votes are taken. We must have that information.

The Chair: Mrs Sullivan moves that clause 7(1)(k.1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subclause:

"(i.1) the authorization of persons or organizations or of persons employed by a facility or controlled-access residence under subsection (2.1) to perform functions on behalf of the commission."

Mrs Sullivan further moves that clause 7(1)(k.2) of the bill, as reprinted to show the amendments proposed by the minister, be struck out.

Mrs Sullivan: There are other amendments later on. I suppose I should go to those in order, though, so I'll leave those for now.

Mr Jim Wilson: I am certainly willing to go on at this point and just deal with advocates in Bill 74. I will say, for the record, that if Mr Winninger and the government are satisfied with that -- and his remarks did help satisfy me that rights advice is now being provided in hospitals and health care settings -- and with the role of rights advisers, then I'm certainly willing to take that into consideration.

I just want to make the point that it wasn't my party that went out and made all these promises about advocates in hospitals. I'd just as soon not see them there. The reason I was alarmed by this is that when Mr Wessenger told me that rights advisers were really advocates, I thought, well, we're back to where we were with draft one of this legislation. I just want to make that clear. I'm quite content to take the government's word -- and my own experience would indicate -- that a great deal of rights advice is now being provided in hospitals. If this new legislation reflects the status quo, I would agree with the government that rights advisers as envisioned in this legislation are appropriate.

Mr Malkowski: For a point of clarification on the point you were discussing, Mr Wilson, I'd like to refer to our policy person.

Ms Mary Beth Valentine: Just for clarification, rights advice as it's now provided under the Mental Health Act in the psychiatric hospitals is provided through the advocate office, so rights advisers don't report within the institution; they report to the psychiatric patient advocate office. When rights advice is provided in psychiatric units in general hospitals, rights advice is provided by legal aid. So in neither situation is it provided within the institution. The independence is there.

Mr Winninger: I just wanted to clarify something that was said earlier that Mr Wilson responded to. I wasn't suggesting that we were satisfied with the status quo; I was just suggesting that the status quo provides a basis to build on. It's not as though we're operating in a vacuum in terms of rights advice right now, and I think Mr Wilson agrees with that.

I want to move that we adjourn the debate today. I don't know what the feelings of the opposition members are, but I just had a chance to speak to the Conservative members --

The Chair: No discussion. Mr Winninger has moved that the committee adjourn till tomorrow. All those in favour? Opposed? The committee members have to vote. All those in favour of adjournment till tomorrow?

Mr Malkowski: Could we have a five-minute break just to hold this for a moment?

The Chair: Too late. We're already conducting the vote, unless Mr Winninger would like to withdraw his motion to adjourn in favour of a five-minute recess.

Mr Winninger: If my colleague wishes to have a recess, I'd be prepared to withdraw the motion.

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Mr Jim Wilson: Let's just go on friendly agreement here to go a little longer. We've got quite a few to go through and we are under a deadline.

Mr Wessenger: If I could make a suggestion, I think it might be more productive if we spent the rest of the day just moving the amendments and defer discussion on them until tomorrow. That would make sense. I am just making the suggestion to save time. The problem is that there are a lot of interministerial problems raised by some of the amendments and some definition problems that would benefit from discussion. It would be more beneficial to have the discussion tomorrow, but rather than waste today, why don't we move the amendments today and defer discussion until tomorrow?

The Chair: Is there agreement to just just reading the amendments?

Mr Sterling: Mr Chairman, I would suggest that you read in the proposed amendment and that the proposer of the amendment explains the thrust of it, and that would be it. If anybody wants to say yea or nay that we limit it to that kind of discussion --

The Chair: And we can get into the discussion tomorrow. Are we agreed that we'll move them with a brief comment?

Mr Wessenger: Move the amendments, but we still have the right to have discussion on the amendments tomorrow.

The Chair: Tomorrow, time permitting, of course.

Mr Jim Wilson: And today if it's brief.

The Chair: Agreed? Okay.

Mrs Sullivan moves that clause 7(1)(k.2) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"(k.2) establish, subject to the approval of the minister, and make available to any person on request, a written review procedure for dealing with complaints from any person relating to advocates or rights advisers."

Mrs Sullivan: I want to you note that that's alternative 2.

The Chair: Mrs Sullivan moves that clause 7(1)(k.3) of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding at the end "and rights advisers."

Mrs Sullivan further moves that clause 7(1)(l) of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "advocates" in the first line "rights advisers."

Mrs Sullivan further moves that subsection 7(2) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "non-profit community agencies that do not provide services to vulnerable persons, other than advocacy services" in the first, second, third and fourth lines and substituting "non-profit community agencies."

Mrs Sullivan further moves that section 7 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:

"Persons and organizations

"(2.1) The commission may authorize persons or organizations or persons employed by a facility or controlled-access residence to perform functions set out in clause (1)(d) on behalf of the commission, subject to such terms and conditions as the commission considers appropriate."

Mrs Sullivan further moves that section 7 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:

"Authorization of rights advisers

"(4.1) The commission may authorize a person who works for a facility or controlled-access residence to provide rights advice on behalf of the commission, subject to such terms and conditions as the commission considers appropriate."

Mrs Sullivan further moves that clauses 7(5)(c) and (d) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"(c) persons who provide care and services to vulnerable persons."

Section 8:

The Chair: Mr Winninger moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:

"Delegation of powers, etc

"8.1(1) The commission may delegate in writing any of its functions, powers or duties under the act to the chair or to any member or group of members and may impose such conditions and restrictions as it considers appropriate.

"Subdelegation by chair

"(2) The chair may delegate in writing to any person employed by the commission any function, power or duty of the commission delegated to the chair and may impose such conditions and restrictions as he or she considers appropriate."

Mr Sterling: I just want to say briefly that I have some concern about subsection 8.1(2) of the government motion, dealing with information and the delegation of that to a bureaucrat. I find a great deal of difficulty with that concept.

Section 9:

The Chair: Mrs Sullivan moves that subsection 9(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"Protection from personal liability

"(1) No proceeding for damages shall be instituted against any of the following persons for any act done in good faith in the execution or intended execution of the person's duty or for any alleged neglect or default in the execution in good faith of the person's duty:

"1. A member of the commission.

"2. An advocate or other person who works for the commission or a community agency, whether on a paid or voluntary basis.

"3. A rights adviser who works for the commission or for an organization, facility or controlled-access residence, whether on a paid or voluntary basis."

The Chair: Mr Sterling moves that subsection 9(1) of the bill be amended by deleting the words "or for any alleged neglect or default in the execution in good faith of the person's duty."

For clarification, are you talking about the reprinted bill?

Mr Sterling: Yes, I am.

Section 10:

The Chair: Mrs Sullivan moves that clause 10(1)(a) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"(a) shall establish a committee composed of persons from the groups described in subsection (2) to advise the commission; and."

Mrs Sullivan further moves that paragraph 2 of subsection 10(2) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "non-professional" in the first line.

Mrs Sullivan further moves that section 10 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsections:

"Functions of committees

"(3) The committees shall advise the commission on issues referred to them by the commission and may advise the commission on such other matters as the committees consider appropriate.

"Meetings

"(4) The committees shall meet regularly.

"Reports

"(5) The commission shall include any reports made to it by the committees in its annual report under subsection 11(1)."

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Mr Sterling moves that section 10 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsections:

"Functions

"(3) The committee established under clause (1)(a) has the following functions:

"1. To evaluate and comment on the effectiveness in relation to the families of vulnerable persons of the commission in providing advocacy services to vulnerable persons.

"2. To comment on the impact of the delivery of advocacy services on the delivery of health and social services.

"3. To review the policies and procedures of the commission and to advise the commission about policies and procedures.

"(4) The chair of the committee established under clause (1)(a) shall be appointed from among the members of the committee.

"(5) The chair and the other members of the committee established under clause (1)(a) shall hold office for three-year terms and may be reappointed for one further three-year term.

"(6) The committee established under clause (1)(a) shall meet at least once a month.

"(7) The chair and the other members of the committee established under clause (1)(a) shall be paid the remuneration fixed by the Lieutenant Governor in Council."

Section 11:

The Chair: Mr Sterling moves section 11 of the bill be amended by adding thereto the following subsection:

"(3) The advisory committee shall table an annual report for the Legislative Assembly if it is in session or, if not, at the next session."

Again, for clarification, you're talking about the reprinted bill.

Mr Sterling: Thank you, yes.

Section 15:

The Chair: Mr Malkowski moves that paragraph 2 of subsection 15(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "diabetes or a learning disability" in the fourth and fifth lines and substituting "or diabetes."

Mr Sterling: We agree with that amendment.

The Chair: Mr Malkowski moves that paragraph 6 of subsection 15(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "or traumatic head injury" in the fourth line and substituting "traumatic head injury or a learning disability."

Mr Sterling: We also agree with that one.

The Chair: Mrs Sullivan moves that paragraph 6 of subsection 15(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "syndrome" in the fourth line "schizophrenia."

Mr Malkowski moves that subsection 15(2) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"(2) In order to participate in the nomination process, an organization must have at least 20 members and,

"(a) in the case of an organization described in paragraph 1, 2, 3, 4, 5, or 6 of subsection (1), a majority of the members must be or have been persons who are described in the applicable paragraph as being represented by the organization;

"(b) in the case of an organization described in paragraph 7 of subsection (1), a majority of the members must be or have been persons with a disability referred to in paragraph 1, 2, 4, 5 or 6; and

"(c) in the case of an organization described in paragraph 8 of subsection (1), a majority of the members must be or have been persons who are receiving or have received health care services and who are concerned about their rights in that context."

Mrs Sullivan moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following sections:

"Advocacy Review Board

"15.0.1(1) A board to be known as the Advocacy Review Board is hereby established.

"Functions of the board

"(2) The board has the following functions:

"1. To consider complaints relating to the conduct of advocates and rights advisers who provide advocacy services on behalf of the commission.

"2. To hear appeals from decisions or findings of advocates and rights advisers.

"3. To consider complaints relating to the commission's performance of its functions.

"4. To hear appeals from decisions or findings of the commission.

"5. To issue directives concerning the circumstances in which advocates and rights advisers are required to provide the advocacy services required under the act.

"Powers of the board

"(3) The board has the powers necessary to perform its functions and, in particular, may,

"(a) investigate and hold hearings into complaints;

"(b) impose disciplinary measures against an advocate or rights adviser that the board determines has acted improperly, including directing the commission to dismiss him or her for cause;

"(c) substitute its decision or finding in a matter complained of for that of the advocate, rights adviser or commission and direct a course of action to be followed.

"Procedure

"(4) The chair of the board may make rules governing the procedure to be used in hearings before the board.

"Composition of panels

"(5) The chair shall determine the composition of each panel of the board that holds a hearing relating to a complaint or an appeal. A panel may consist of either one or three members, as the chair determines.

"Composition of the board

"15.0.2(1) The board shall consist of such members as may be appointed by the Lieutenant Governor in Council.

"Ineligibility

"(2) A person is not eligible to be appointed as a member of the board if she or she is employed,

"(a) by the commission;

"(b) by a community agency that provides advocacy services to vulnerable persons;

"(c) by an organization that provides health care, housing or vocational or other services to vulnerable persons; or

"(d) at a facility.

"Chair

"(3) The Lieutenant Governor in Council shall designate one member as chair and one or more others as vice-chairs.

"Service

"(4) The members shall serve on a part-time basis.

"Term and reappointment

"(5) The members shall hold office for three-year terms and may be reappointed.

"Vacancies

"(6) If a member's position becomes vacant, the Lieutenant Governor in Council may appoint a replacement to serve for the remainder of the member's term.

"Same, chair

"(7) If the chair is unable to act for any reason, a vice-chair may act in his or her place.

"Remuneration and expenses

"(8) The members shall be paid the remuneration fixed by the Lieutenant Governor in Council and the reasonable expenses incurred in the course of their duties under the act.

"Staff

"(9) Such employees as are necessary for the proper conduct of the board's work may be appointed under the Public Service Act.

"Complaints to the board

"15.0.3(1) Any person may make a complaint to the board in writing, "(a) about the conduct of advocates and rights advisers who provide advocacy services on behalf of the commission; or

"(b) relating to the commission's performance of its functions.

"Appeals

"(2) Any interested person may appeal a decision or finding of an advocate, a rights adviser or the commission by giving notice in writing to the board.

"Consideration by the board

"(3) Upon receiving a complaint or notice of an appeal, a panel of the board shall hold a hearing into the matter and make a decision.

"Legal representation

"(4) A party to a hearing and any witness participating in the hearing is entitled to be represented by a lawyer at the hearing.

"Decision re frivolous complaint

"(5) If the board determines that a complaint or an appeal is frivolous, it may impose a penalty of up to $1,000 on the person who made the complaint and may direct that any or all of that sum be paid to persons against whom the complaint was made.

"Compliance by commission

"(6) The commission shall comply with any directions issued to it by the board relating to a complaint.

"Publication of decisions

"(7) The board shall provide a copy of its decision following a hearing to persons who request a copy."

Mr Sterling: Mine is somewhat similar in putting forth a complaints review committee, but is perhaps a little more succinct.

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The Chair: Mr Sterling moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:

"Complaints review committee

"15.0.1(1) The commission shall establish a committee to be known as the complaints review committee.

"Composition

"(2) The committee shall be composed of such number of members as the commission determines and,

"(a) one third of the members shall be appointed by the commission; and

"(b) two thirds of the members shall be appointed by the advisory committee established under clause 10(1)(a) from among its members.

"Functions

"(3) The committee has the following functions:

"1. To consider complaints relating to the conduct of advocates and relating to the commission's performance of its functions.

"2. To hear appeals from decisions or findings of advocates or of the commission.

"Powers

"(4) The committee has the powers necessary to perform its functions and, in particular, may,

"(a) investigate and hold hearings into complaints;

"(b) substitute its decision or finding in a matter for that of the advocate or commission; and

"(c) impose disciplinary measures against an adviser that the committee determines has acted improperly."

Mr Jim Wilson: I think it would be helpful, before we all spend a great deal of time this evening further refining either a review board or a complaints committee, to hear whether the government has any interest in this area.

Mr Malkowski: I'm sorry, Mr Wilson, could you repeat your question?

Mr Jim Wilson: Yes. Given that there are two amendments, both setting up similar boards or committees, and the government has not brought forward a similar amendment, what is the government's frame of mind with respect to either an advocacy review board or a complaints committee?

Ms Carter: I think I can say that we feel it's not really appropriate.

Mr Sterling: It's up to these people to be accountable.

Ms Carter: There's a comparison with, for example, what happens in the law society where a lawyer who doesn't shape up is disbarred from his whole practice, not just loses one particular employer, and we're not in that kind of situation in the Advocacy Commission. It's not comparable to that kind of situation.

Mr Sterling: Why not?

Mr Jim Wilson: If Ms Carter's finished, I would just say that I really disagree and I would hope the government will reconsider this. Given its own model in the regulated health professions acts and at least accountability within colleges, I would think there'd be some members of government over there eager to address this issue.

Mr Malkowski: I'd like to respond to Mr Wilson. I think this is something we will have to be discussing and considering this evening and respond tomorrow to that.

Mr Jim Wilson: Okay, that's fair.

Mr Wessenger: I just want to add that I find Mr Wilson's remarks persuasive and I think various models should be looked at in this regard, as the parliamentary assistant for Citizenship has indicated will be done.

Mrs Sullivan: As you're considering this then, if you are going to have a serious look at complaints procedures, I think it's clear that the opposition parties are coming from a similar direction. One of the things that was raised as a matter of concern was the independence of a complaints process from the commission itself, and I think that's a matter we'd certainly like the government to have on the table as well.

The Chair: Mrs Sullivan moves that section 15.1 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:

"Capacity to instruct

"(1.1) A vulnerable person is capable of instructing an advocate if the person,

"(a) is able to understand the information that is relevant to giving instructions in the circumstances and to appreciate the reasonably foreseeable consequences of the instructions; or

"(b) is able to express, in some manner, his or her instructions or wishes."

Mrs Sullivan moves that subsection 15.1(3) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "incapable" in the fourth line and substituting "capable."

Mr Malkowski moves that section 15.1 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:

"Capacity to instruct

"(4) A vulnerable person is capable of instructing an advocate if the person is able to indicate a desire for advocacy services and the purpose for which he or she wishes to receive the services."

Mrs Sullivan moves that section 15.3 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:

"Revocation of instructions

"(3) The vulnerable person or a person who is authorized to instruct an advocate respecting a vulnerable person may revoke or revise instructions to the advocate."

Mr Jim Wilson moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:

"Appeal re status

"15.4 An advocate who determines that a person is a vulnerable person shall,

"(a) advise the person that the advocate has made that determination and the reasons for the determination;

"(b) advise the person that he or she may request the commission to review that determination in accordance with its review procedures; and "(c) advise the person that he or she is entitled to consult a lawyer."

Section 17:

Mrs Sullivan moves that section 17 of the bill, as reprinted to show the amendments proposed by the minister, be struck out.

This motion is out of order and you need unanimous consent. Do we have unanimous consent? That's just to move it.

Mrs Sullivan: Yes.

The Chair: Do we have unanimous consent to move it? Agreed.

Mrs Sullivan moves that subsection 17(2) of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting before "controlled-access" in the first line and in the sixth line "facility or" in each case.

Mr Sterling, one moment please.

Mr Sterling: I'm just trying to compare these sections here. I wonder whether my amendment is identical to that of Mrs Sullivan.

Mr Jim Wilson: I think it is.

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Mr Sterling: My amendment is exactly the same amendment.

The Chair: Would you like to withdraw yours?

Mr Jim Wilson: No, enter it into the record.

Mr Sterling: No, I'll withdraw it.

The Chair: Thank you, Mr Sterling.

Section 18:

The Chair: Mrs Sullivan moves that section 18 of the bill, as reprinted to show the amendments proposed by the minister, be struck out.

Again, we would need unanimous consent to move this motion. Agreed.

Mrs Sullivan moves that section 18 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:

"Entry to private dwellings

"(1.1) Despite subsection (1), an advocate is not entitled to enter a private dwelling without a warrant for entry."

Mr Sterling: That one was faintly familiar with mine, and therefore I will withdraw mine.

Mr Jim Wilson: The word "identical" comes to mind.

Section 19:

The Chair: Mrs Sullivan moves that subsection 19(1) of the bill be struck out and the following substituted:

"Warrant for entry

"(1) A justice of the peace may issue a warrant to an advocate for entry to premises if the justice of the peace is satisfied that,

"(a) the advocate has reasonable grounds to believe that there is a risk of serious harm to the health or safety of a vulnerable person in the premises;

"(b) the advocate has reasonable grounds to believe that a vulnerable person wants the services of an advocate; or

"(c) a meeting with a vulnerable person is necessary to fulfil the purposes of the act."

Once again, we're discussing the reprinted bill, at the very beginning?

Mrs Sullivan: Yes.

The Chair: Mrs Sullivan moves that section 19 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsections:

"Premises

"(6) The warrant authorizes the advocate to enter only the common areas of the premises including the entryways, hallways, elevators, stairs and common rooms.

"Consent re private dwelling units

"(7) The advocate may not enter a private dwelling unit or a private room in a facility or controlled-access residence or other premises without the consent of the vulnerable person.

"Departure

"(8) The advocate must leave the premises promptly if the vulnerable person indicates that he or she does not want the services of an advocate."

Section 24:

The Chair: Mrs Sullivan moves that subsection 24(2) of the bill, as reprinted to show the amendments proposed by the minister, be struck out.

Once again, unanimous consent? Agreed.

Mrs Sullivan moves that subsection 24(3) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "incapable of instructing an advocate" in the second and third lines and substituting "incapable of consenting to access to the person's records."

Mrs Sullivan moves that subsection 24(4) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "incapable of instructing an advocate" in the second and third lines and substituting "incapable of consenting to access to the person's records."

Mrs Sullivan moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:

"Capacity to consent to access

"24.0.1(1) A vulnerable person is capable of consenting to access to records if the person understands,

"(a) the subject matter for which the consent is required; and

"(b) the reasonably foreseeable consequences of giving or refusing to give his or her consent.

"Assessment

"(2) An advocate who considers a vulnerable person to be incapable of consenting to access to records shall ensure that the capacity of the person is assessed by an assessor authorized under the Substitute Decisions Act, 1992.

"Appeal

"(3) If the assessor determines that the vulnerable person is incapable of consenting to access to records, the advocate shall,

"(a) advise the person in writing that the assessor has made that determination; and

"(b) advise the person that he or she may appeal that determination to the Consent and Capacity Review Board as if the determination had been made under the Consent to Treatment Act, 1992.

"Stay pending appeal

"(4) If the determination is appealed, the advocate shall not seek access to the vulnerable person's records under subsection 24(2) or (4) until the board disposes of the appeal."

Mr Sterling: I'm going to withdraw that amendment; it's somewhat similar.

The Chair: Mrs Sullivan moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:

"Request for access to records

"24.1(1) An advocate who wishes access to particular records shall make a written request to the operator of the facility, controlled-access residence or program prescribed by the regulations made under this act, as the case may be.

"Application to withhold records

"(2) The operator may apply to the Consent and Capacity Review Board for permission to withhold all or part of the records sought by the advocate and shall give written notice of the application to the advocate.

"Determination by the board

"(3) Within seven days after receiving the application, the board shall direct the operator to give the advocate access to the records or to such portion of the records as the board specifies.

"Stay pending direction

"(4) The advocate is not entitled to access to the records to which the application relates until the board gives a direction under subsection (3)."

Mr Sterling moves that the bill, as reprinted to show the amendments proposed by the minister, be amended to add the following section:

"Request for access to records

"24.1(1) An advocate who wishes access to the records of a person shall make a written request to the operator of the facility, controlled-access residence or program prescribed by the regulations made under this act, as the case may be.

"Refusal

"(2) The operator is entitled to refuse to give the advocate access to the records if the advocate does not have a warrant for access.

"Restriction

"(3) The advocate is not entitled to access to records relating to other persons."

Section 25:

The Chair: Mr Sterling moves that section 25 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsections:

"Consent of the commission

"(2.1) The commission shall not consent to the advocate having access to the records unless it considers that there are reasonable grounds to believe that the operator of the facility, residence or program engages in practices that are detrimental to vulnerable persons.

"Notice by commission

"(2.2) The commission shall notify the operator, in writing, if it consents to the access.

"Refusal

"(2.3) The operator of the facility, residence or program is entitled to refuse to give the advocate access to the records if the advocate does not have a warrant for access."

1740

Mr Malkowski moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:

"Access to documents of general application

"25.1 An advocate is entitled to have access, for the purpose of providing advocacy services, to any record that is a document of general application relating to the observation, care, treatment or management of persons that is in the custody or control of,

"(a) a facility;

"(b) a person who operates a controlled-access residence; or

"(c) a person who operates a program prescribed by the regulations made under this act."

Mr Sterling: I just want to indicate that I think we will be opposing that very much. It seems to be a wide-open access for the advocate to get any document he would so choose, regardless of having to prove anything to anybody.

Mrs Sullivan: I would like to add that we will be opposing that as well.

The Chair: Mrs Sullivan.

Mrs Sullivan: Sorry, I thought I was recognized.

The Chair: Thank you, Mrs Sullivan. Mr Wilson.

Mr Jim Wilson: Just on that point also, I think that tomorrow we'd like to discuss exactly what is meant by a document of general application and just how far-spread that general application is.

Section 26:

The Chair: Mrs Sullivan moves that section 26 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsections:

"Exception, certain records

"(3) Sections 24 and 25 do not apply to authorize an advocate to obtain the following records relating to one or more vulnerable persons:

"1. Information compiled or documents prepared and used for the purpose of, or in the course of, medical or health education.

"2. Information compiled or documents prepared and used in a course of study, a program, an investigation or in research carried on by or in respect of a facility.

"3. Information compiled or documents prepared and used for the purpose of improving hospital care, medical practice or health practice.

"4. Records relating to complaints made to a college that regulates a health profession.

"5. Information relating to persons other than vulnerable persons.

"Further exception

"(4) An advocate may have access to records described in paragraph 4 of subsection (3) with the consent of the person making the complaint."

Mr Sterling: The Liberal critic and myself seem to have engaged lawyers of the same firm or people who have very like minds. I'd like to withdraw my amendment, because it's almost identical to Mrs Sullivan's.

Section 28:

The Chair: Mr Malkowski moves that clause 28(1)(a) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "or subsection 25(1)" in the third line and substituting "subsection 25(1) or section 25.1."

Section 34:

The Chair: Mrs Sullivan moves that clause 34(1)(a) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"(a) who is exercising a right of entry to a premises under the authority of a warrant for entry."

Mr Malkowski moves that section 34 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:

"Entry to private dwellings

"(2.1) Subsection (1) does not apply to a person who refuses to allow an advocate to enter a private dwelling without a warrant for entry."

Mrs Sullivan moves that subsection 34.1(2) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "$5,000" in the third line and substituting "$25,000."

Mr Sterling moves that section 34.1 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:

"Offence, acting without reasonable grounds

"(4) An advocate who does not have reasonable grounds when exercising a right described in subsection 17(1), 18(1) or 24(2), (3) or (4) is guilty of an offence and is liable, on conviction, to a fine not exceeding $5,000."

Mr Sterling: Those are the information sections I'm referring to.

Section 35:

The Chair: Mrs Sullivan moves that subsection 35(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "$5,000" in the sixth line and substituting "$25,000."

Section 36:

The Chair: Mrs Sullivan moves that subsection 36(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "The commission may, subject to the approval of the Lieutenant Governor in Council, make regulations" in the first three lines and substituting, "The Lieutenant Governor in Council may make regulations."

Mrs Sullivan: I believe it's with reference to this amendment that I stood an amendment down earlier.

The Chair: Right. That was clause 7(1)(k).

Section 7:

The Chair: Mrs Sullivan moves that clause 7(1)(k) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"(k) make recommendations to the minister with respect to the minimum qualifications, standards and a code of conduct for rights advisers and advocates."

Section 36:

The Chair: Mrs Sullivan moves that subsection 36(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following clauses:

"(g) establishing minimum qualifications, standards and a code of conduct for advocates and rights advisers;

"(h) establishing training programs for advocates and rights advisers;

"(i) establishing disciplinary procedures and measures applicable to advocates and rights advisers who fail to comply with the standards and procedures established under the act;

"(j) establishing an independent review procedure for,

"(i) complaints relating to the commission or to advocates or rights advisers,

"(ii) appeals of or objections to decisions and determinations by the commission or by advocates or rights advisers;

"(k) establishing procedures for reviewing community agencies;

"(l) establishing procedures for reviewing persons who are authorized to provide advocacy services on behalf of the commission."

Section 37:

The Chair: On the government replacement section 37, in the reprint they struck out the whole section.

We need unanimous consent. Do we have unanimous consent? Agreed.

Section 6:

The Chair: We have two replacement motions on subsection 6(1), I believe. Mr Malkowski.

Mr Jim Wilson: There is one PC replacement motion.

The Chair: Mr Malkowski moves that subsection 6(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"Criteria for appointment

"(1) A majority of the members of the commission shall be persons who

"(a) have or have had a physical or mental disability or an illness or infirmity likely to result in a physical or mental disability; or

"(b) are 65 years of age or older."

Mr Wessenger: This is a replacement?

The Chair: A replacement for the original.

Mr Wessenger: There's a problem with the replacement for the original; if you're going to replace it, the word "be" should come out. It should read:

"(1) A majority of the members of the commission shall

"(a) have or have had a physical or mental disability or an illness or infirmity likely to result in a physical or mental disability; or

"(b) are 65 years of age or older."

The Chair: Right.

Mr Wessenger: So is that accepted then that the "be" has to be removed? Wait a minute. I'm sorry. It was me who read it incorrectly.

The Chair: I think we have it. Thank you very much.

Mr Jim Wilson: Mr Chairman, will we see a clean copy of that tomorrow?

The Chair: I certainly hope so.

Mr Sterling moves that subsection 6(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:

"Criteria for appointment

"(1) The commission shall be constituted as follows:

"1. A majority of the members shall be persons who

"i. have or have had a physical or mental disability or an illness or infirmity likely to result in a physical or mental disability, or

"ii. are 65 years of age or older.

"2. At least one third of the members shall be persons who are family members of vulnerable persons, non-professional persons who provide care to vulnerable persons or health and social services practitioners who provide services to vulnerable persons."

Is it agreed by both the government and the PCs that the original motions are withdrawn and these replacements shall stand?

Mr Sterling: Yes.

The Chair: Thank you very much.

Mr Sterling: I had a motion on section 2 to change the definition of "vulnerable person." I withdrew one before and I want to withdraw the second one, which removes the words "and whether actual or perceived." I withdraw that motion. That was about the fourth or fifth motion that we considered.

The Chair: Thank you very much.

Mr Sterling: I'd also like to indicate, Mr Chairman, as we didn't put forward a motion as was done by Ms Sullivan as to the amendments which she was not going to vote for, we will not vote for subsection 3(2). It is our view that the act should not apply to people under the age of 16, period.

The Chair: You lost me. Would you please repeat that?

Mr Sterling: It is our view that the act should not apply to persons under the age of 16, that those persons are taken care of under the Mental Health Act and the Child and Family Services Act. Those acts were designed and brought to the Legislature with a view of dealing with these issues at that time. This legislation, by introducing advocates into that milieu, is not assisting in that operation or representing vulnerable children in any additional ways.

Mr Owens: I move adjournment.

The Chair: Mr Owens moves adjournment. All those in favour? Opposed? Carried. This committee stands adjourned until 10 am tomorrow morning.

The committee adjourned at 1755.