FAMILY ASSOCIATION OF MENTAL HEALTH IN ETOBICOKE
INTEGRATION ACTION GROUP OF ONTARIO
ONTARIO COALITION OF SENIOR CITIZENS ORGANIZATIONS
ADVOCACY RESOURCE CENTRE FOR THE HANDICAPPED
ONTARIO NETWORK FOR THE PREVENTION OF ELDER ABUSE
ONTARIO BOARD OF EXAMINERS IN PSYCHOLOGY
CITIZEN ADVOCACY OF OTTAWA-CARLETON
EASTER SEAL PARENT ADVOCACY COMMITTEE
ONTARIO ASSOCIATION OF PROFESSIONAL SOCIAL WORKERS
CONTENTS
Monday 17 February 1992
Advocacy Act, 1991, Bill 74, and companion legislation / Loi de 1991 sur l'intervention, projet de loi 74, et les projets de loi qui l'accompagnent
Peter Thomas Peter
Witness A
Family Association of Mental Health in Etobicoke
Bill Sande, chair
Judy Wallace, coordinator
Integration Action Group of Ontario
Rashmi Nathwani, member, board of directors
Katherine Troyer, past president
Ontario Coalition of Senior Citizens Organizations
Stephen Triantis, representative
Mary Allen-Armiento, representative
Subcommittee report
Advocacy Resource Centre for the Handicapped
Carla McKague, senior litigation lawyer
Ontario Network for the Prevention of Elder Abuse
Doug Butler, board member
Doris Baker, board member
Elizabeth Podnieks, founding member
Ontario Board of Examiners in Psychology
Patrick Wesley, registrar
Bruce Quarrington, consultant
Citizen Advocacy of Ottawa-Carleton
Joan Black, board member
Brian Tardif, executive director
Paul Hanvey, volunteer advocate
Easter Seal Parent Advocacy Committee
Ludamilla Donald, chair
Ontario Association of Professional Social Workers
Susan Roher, representative
Doris Baker, representative
Glenda McDonald, representative
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président(e): Cooper, Mike (Kitchener-Wilmot ND)
Vice-Chair / Vice-Président(e): Morrow, Mark (Wentworth East/-Est ND)
Carter, Jenny (Peterborough ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
Fletcher, Derek (Guelph ND)
Malkowski, Gary (York East/-Est ND)
Poirier, Jean (Prescott and Russell/Prescott et Russell L)
Sorbara, Gregory S. (York Centre/Centre L)
Sterling, Norman W. (Carleton PC)
Wessenger, Paul (Simcoe Centre/Centre ND)
Wilson, Jim (Simcoe West/-Ouest PC)
Winninger, David (London South/-Sud ND)
Substitution(s) / Membre(s) remplaçant(s):
Curling, Alvin (Scarborough North/-Nord L) for Mr Sorbara
Stockwell, Chris (Etobicoke West PC) for Mr Sterling
Also taking part / Autres participants et participantes:
Fram, Stephen, Ministry of the Attorney General
Spinks, Trudy, Ministry of Citizenship
Clerk / Greffier: Freedman, Lisa
Staff / Personnel: Swift, Susan, Research Officer, Legislative Research Service
The committee met at 0941 in committee room 1.
ADVOCACY ACT, 1991, AND COMPANION LEGISLATION / LOI DE 1991 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Resuming consideration of Bill 7, An Act to amend the Powers of Attorney Act; Bill 8, An Act respecting Natural Death; Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / Projet de loi 74, Loi concernant la prestation de services d'intervenants en faveur des personnes vulnérables; Bill 108, An Act to provide for the making of Decisions on behalf of Adults concerning the Management of their Property and concerning their Personal Care / Projet de loi 108, Loi prévoyant la prise de décisions au nom d'adultes en ce qui concerne la gestion de leurs biens et le soin de leur personne; Bill 109, An Act respecting Consent to Treatment / Projet de loi 109, Loi concernant le consentement au traitement; and Bill 110, An Act to amend certain Statutes of Ontario consequent upon the enactment of the Consent to Treatment Act, 1991 and the Substitute Decisions Act, 1991 / Projet de loi 110, Loi modifiant certaines lois de l'Ontario par suite de l'adoption de la Loi de 1991 sur le consentement au traitement et de la Loi de 1991 sur la prise de décisions au nom d'autrui.
PETER THOMAS PETER
The Chair: I call this meeting of the standing committee on administration of justice to order. I would like to call forward our first presenter, Tom Peter. Good morning. Please have a seat. Would you please identify yourself for the record and then proceed.
Mr Peter: My name is Peter Thomas Peter and I am a psychiatric survivor. I would like to make a presentation to the standing committee on administration of justice. I am making a personal submission regarding the proposed Bills 108, 109 and 110.
In approximately April 1985, I was suffering with a number of problems in life and as a result of a decision I made I have for the past six years been unable to function in my normal capacity as husband, father, provider and human being. The decision I made was to attend the Clarke Institute of Psychiatry for some guidance and assistance. I was experiencing problems with my living accommodation and additional problems in my personal life. I was very tired and frustrated and was voluntarily admitted with the purpose of addressing these normal life problems. I spent approximately three weeks on the ward and then left. It was very crowded and none of my problems had been counselled.
Grasping for any extended hand of help, I approached a psychiatrist of the Clarke Institute at the drop-in centre within that facility. Upon seeing my distress with what was happening in my life, he suggested I be admitted to a regular ward of the Clarke. He told me to be able to remain on the ward I would have to submit to medication as prescribed by him.
I had previously been admitted to the Clarke in 1969 and I was curious and also concerned about health risks with medications and shock treatment and the lack of help addressing the problems I was facing. For fear of ending up without a roof over my head, I felt coerced into submitting to the treatment.
My average dosage of medications left me completely unable to think freely or to consider my problems rationally. The adverse reactions to this include insatiable thirst, dry mouth, falling in and out of consciousness, no equilibrium, dizziness, constipation and thorough confusion. All this occurred without any explanation of the reactions that I may experience. At times I refused the medication and was told that if I did not take it I would have to leave.
After approximately seven days of unpredictable torment and disappointment I was approached by two psychiatrists and told that to speed up my recovery they wanted to give me shock treatment. The treatments would involve a series of 15 shock treatments. After I refused, they certified me involuntarily. My medication was obviously greatly increased then. I assume they considered me incompetent to consent.
To implement their plan to administer shock treatment to me, they contacted my mother and told her they needed her consent for electroconvulsive therapy. They told her it was in my best interests in terms of recovery. I was never certified as incompetent and never gave consent.
I knew the treatment was dangerous and experimental in nature. This was proven to me after, when I experienced both short-term and long-term memory loss. This created a debilitating condition and worsened my original reasons for attending the Clarke Institute. The pain and anxiety this treatment caused could have been implemented more cost-effectively by striking me on the head with a crowbar.
Since psychiatry is not an exact science and I was betrayed by them after placing my initial trust in them, I feel I should be able to gain access to the justice system by filing charges of assault. I have been to see several different justices of the peace, Ontario crown attorneys, the Ontario Human Rights Commission, the College of Physicians and Surgeons of Ontario, the Office of the Ombudsman, the Attorney General and the Ministry of Health.
I was told by a justice of the peace that I deserved what I got and that the Court of Appeal decision meant nothing to him, regarding the recent Court of Appeal ruling that a mentally incompetent, involuntary patient could not be given treatment if he did not want the treatment when he was previously competent.
To my knowledge, no action or investigative work is being done on this matter by all those institutions that could help and have obviously refused to.
I feel the legislation before you must protect the vulnerable from the kinds of totalitarian intimidation I experienced. I would like to see all consent to any questionable psychiatric treatment be voluntary, informed, in writing and verifiable.
I appreciate the opportunity this committee has given to me to speak and present this information to you. I hope the work you do will protect the thousands of other victims who have fallen prey to psychiatric abuse.
The Chair: Thank you.
Mr Poirier: Thank you for coming forward to present this. Do you have any specific recommendations or observations pertaining to what is proposed? Would you have some comments with specific reference to Bill 74: what you would like, what you would not like? You gave us a general principle of where you stand on this, but do you have anything specific to say?
Mr Peter: I think every individual should, no matter what the situation, have the access to choose the line of treatment he or she wishes to receive. I do not agree with the way the statutes of the law have been in place for years and have been ignored for a large part of the industry. I have a great fear or anxiety that this may never be done because they are such very protected and godlike figures in their own minds.
Mr Poirier: Do you have a relationship with the Clarke Institute now?
Mr Peter: No.
Mr Poirier: Have you found an advocate? What is your current situation?
Mr Peter: I have tried to lay charges. I have seen everyone of any accountability within the legal and the health fields and I am totally disappointed.
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Mr Poirier: You feel like right now nobody is there to help you out, nobody wants to take on your dossier. Is that how you feel?
Mr Peter: I feel my basic impact on the justices of the peace -- their legal justification is based on the fear or anxiety of even looking at what took place and repercussions and denying me access to the law out of fear, which should not be there and in place.
Mr Winninger: I take it you received this electroshock back in 1985?
Mr Peter: Yes.
Mr Winninger: You were concerned about the side effects, the memory loss?
Mr Peter: Yes.
Mr Winninger: You indicate on page 3 of your brief that after you refused the electroshock -- it appears you refused it -- your mother was contacted and she consented.
Mr Peter: She consented but -- I love my mother dearly, but it was not informed consent, so to speak. She was being very laymanish, not understanding the techniques or the treatment, but gave it out of their input, "It's in Tom's best interests that he follow this treatment."
Mr Winninger: To your knowledge, your mother was never made fully aware of the side effects at the time?
Mr Peter: No, never.
Mr Winninger: Have you had any admissions since 1985?
Mr Peter: None, thank God.
Mr Winninger: But you are still coping with the after-effects?
Mr Peter: Trying to cope, yes.
Mr Winninger: Are you finding the support you need in the community to do that?
Mr Peter: Just like everyone else in this recession, it is dog eat dog out there, and sometimes the social services have a strange attitude.
Mr Winninger: Do you think you would benefit from the advocacy that will be offered under our legislation?
Mr Peter: I certainly hope so. I took part in the committee meeting down at the Holiday Inn last week, I guess it was, and the design. I sat on the health committee and I thoroughly enjoyed the opportunity of having some input in the social charter for Canada.
Ms Carter: I think the intent of the legislation we are putting forward is to empower individuals like you to make sure your wishes are respected. I am just wondering what went wrong in your particular case. Would you say what you needed was help, advice and other support within the community and not psychiatric care?
Mr Peters: That is a difficult question. I am involved with the community where I live. I am in a drop-in centre, which is helping me greatly, helping others understand. Although I am not making any money, I am spending my time on different committees, trying to get an impact as an advocate to help and sustain this line of thinking, because there has been a void here for many years.
Ms Carter: So we are strengthening the base.
Mr Peters: It has not reached my level yet, as I am still in a voluntary situation, but I have applied for jobs at the Ombudsman and in their offer for advocacies within mental hospitals, prisons and everything else, as an investigator. I have been an investigator and have a lot of security experience behind me, plus social experience, people experience with social services. I am trying to get a job, but I guess like everyone else, there are 6,000 people applying for a job.
Ms Carter: At the moment you are more a victim of the economic situation than anything else.
Mr Peter: Economic, plus there is an overriding cause. I could never do this before. I could never bare myself in public at a job interview or put on my résumé, "Yes, I was in the Clarke Institute of Psychiatry."
Ms Carter: When you were in there, was there no advocate who could have helped you in your situation?
Mr Peter: At the time, I knew there was supposed to be a patient advocate. I never met anyone. I never met together with the doctors' board. It was never reviewed. I saw the doctor once a week. I was not given any chance to speak about the treatment I was receiving and ask them to review it. It was not reviewed. I am not saying I was refused, but I asked about it, so I do not know.
Ms Carter: So you are saying if there was an advocate there, you were not consulted.
Mr Peter: Who was working, yes, a workable advocate, and if they went by the established law, they would have prevented the treatment I received. That was already in place.
Ms Carter: Do you think the present legislation is going to help in that kind of situation?
Mr Peter: I certainly hope so, I really do. This is the first time this issue has been seriously discussed. I am really pleased we have an opportunity to bring out things in the open. I am not totally anti-psychiatry but I know there are different ways: there are socioeconomic, there are family problems, there are accommodation -- life problems.
Ms Carter: So what you are really saying -- and I have heard this from other people in your situation -- is that we need more alternatives in society.
Mr Peter: Sure, exactly.
Ms Carter: Other support services within the community rather than having to go into an institution.
Mr Peter: Yes, they are very much needed. The community-based district health council is a good project. I do not know whether that is going to continue, but I certainly hope so. I am involved with EMHSA, the Etobicoke Mental Health Services Agency, which has a framework design that I totally agree with. I would love to see this in place. It is going to take time, but it is on the road. This is the thing that will help a lot of people not get down to zero and remain at zero for the rest of their lives. If they want the option to grow and participate, it will be given. I firmly believe that. I think medications and treatments are not the only answer; I think talking, reasoning, enabling people to do things.
Mr Wessenger: Thank you for your presentation. It seems to me you were denied some basic rights back in 1985. You had no right to question the finding of incapacity, unfortunately. Is that correct, that you had no rights in 1985?
Mr Peter: I did really, because on the medical files I was --
Mr Wessenger: No, I do not mean medically you had no basis, I just meant you did not have a legal basis.
Mr Peter: I had no access to help, period, other than the concern and love of my mother. Put a mother in that situation and it is hard on everyone.
Mr Wessenger: To protect people like yourself, it is very important that you have the right --
Mr Peter: It is important that there would be an advocacy program and that the rules are followed.
Mr Wessenger: You had no access to advocacy at the Clarke Institute at that time?
Mr Peter: None whatsoever.
Mr Malkowski: Thank you for your presentation. You were saying you would like to have access. This legislation would respect your right to refuse treatment, because if the medical profession did not respect that, you would then like to be able to bring legal suit against it, correct?
Mr Peter: Correct.
The Chair: Mr Peter, on behalf of the committee, I would like to thank you for taking the time this morning to give us your presentation.
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WITNESS A
The Chair: I would like to call forward our second presenter. I understand you do not wish to have your name used so we will respect those wishes. Please proceed.
Witness A: Thank you. My husband and I are parents of an adult son who suffers from bipolar disease, more commonly known as manic depression. The nature of this illness is that it is episodic. Normally he is a perfectly functioning person, able to work. That is why he is not here today. It is controlled by lithium medication which he takes regularly, but we have had several crises in the manic phase. Somehow his state breaks through the lithium and it is during these crises that we need medical help. When he gets into this state he refuses medication. He knows he needs it in his normal state, but because of the mania he gets into a situation where he thinks he does not need it. At this time we have to get him to hospital. He refuses to go to hospital but we have always been able to -- not easily -- get him there through the help of the police.
I should explain that in the mania he enters a state of psychosis, delusions, paranoia and a state of grandeur. We have no control of him at this time; there is a distancing between us. He has his own agenda that he is following in his delusions and this has at times led to a brush with the law. Luckily it has not been anything too bad, but it usually brings him into the hands of the police, then our effort to get him to hospital.
When we get him to the hospital, the problem is that we arrive at the emergency department and we are confronted with some doctor he has never seen before. We try to explain the situation but we are not listened to. We are just outsiders. What we say has been called hearsay. When we explain his case, this does not seem to be important. What is important is that the doctor there and then makes a decision whether to take him in, whether to give him medication or to detain him, whatever. Of course, a young doctor is going to play pretty safe. He is not going to take him in right away and give him medication. Our situation is different: We are asking for medication at this time.
They cannot detain him. If he is not being violent they can let him go and then once again we have the performance of getting him into hospital. It is not a very easy situation for us. I should say that when he is in this state, with the grandeur and so on, he sounds very plausible. He arrives in front of the doctor -- it is very difficult for a doctor. I understand how the doctor, without listening to what has happened previously, on seeing him would think there is nothing wrong with him. This has happened. Two doctors have found nothing wrong and then we have had to go through the whole thing and get him back again later on. They have to decide according to the law; as they say, the word is "capability" to the treatment. They listen, then they decide if he is capable in the law, which is in Bill 109, subsection 5(5). If they find him capable, they then are able to ask him whether he wants the medication. At this point, he will refuse it. It is only if they find him incapable that, under the Substitute Decisions Act or the power of attorney -- and he is willing to make us, or someone, power of attorney or substitute decision-maker when he is in his right mind. He would like to think that when he has made these provisions, they will hold when he is in crisis. But under the law they will not hold, because if the doctor finds him capable, then the substitute decision-maker does not even come into effect, as I read the law as it stands now.
What we are asking here, changing the law, is that he be assured that when he has chosen a substitute decision-maker, has written his wishes and has stated his condition, that at the time of deciding capability this will be taken into consideration. If there is a dispute with the substitute decision-maker then it should be mandatory that the doctor consults with the supervising doctor who is monitoring the whole case, the family physician as it happens with us, so that this sort of mistake -- because it could be a very serious mistake. People in mania can be violent to others and to themselves. We have been lucky that it has not been worse than the cases we have had.
Also, time is important too in the progress of the disease. The sooner the treatment, the better. If the treatment is given, it is usually a matter of 48 hours and he is out and he is in control and he is willing to take the medication. He is brought down from the mania and is quickly on his way to recovery again. It is probably a year or two before he has another one of these episodes. But if we do not get it, he could end up just wandering on the street. He usually takes off for the east coast or the west coast and it is very difficult for us then to have any jurisdiction at all.
He is not here today because fortunately he is working. He is a professional and he is in normal employment. But he did write a personal statement which perhaps I could read to you. He says:
"I am fortunate to have my parents as care givers at present and would hope that the law could be amended to help them help me when I am not in control of my thoughts and judgements and able to help myself.
"This illness, diagnosed as manic depression, struck me in my university years and now it is very disconcerting to know that my mind can go so out of control when my body chemistry goes awry. I do, however, know from several past episodes that it can be quickly put into control again with the help of medication. Unfortunately, at these times I stubbornly refuse all help due to the delusions I experience, and the law safeguarding my rights to refuse treatment prevents me from being given the help I need and would in my normal mind agree to.
"I hope that the law can be amended so that people like me can state our wishes freely while we are in a normal frame of mind and be assured that they will be followed in spite of our efforts to rescind them in times of crisis. These wishes, for me, would include the giving of short-term medication at the discretion of my appointed attorney or substitute decision-maker, even in the face of my protestations and deluded arguments at that time.
"My past history is crucial to the doctor's decisions, so if he or she is in any doubt it should be mandatory that he or she consult with the family doctor. I know that in the past I have appeared capable in the eyes of several doctors, who as a result were reluctant to treat me, when actually I was in a complete state of delusion with my own irrational agendas that I was able to keep hidden.
"I am aware of the pleas of survivors of the mental health system who are attempting to affect a law that respects the rights of the individual to decide his or her treatment, and while I applaud this, I wish to ask that the law might be so defined to also include my rights to treatment when in this delusional, uncooperative state.
"I do not wish to be an anti-social member of society, nor a burden on the legal and health services. My case is quickly and easily stabilized with timely intervention. But the law as it stands blocks access to the aid I need in time of crisis. Could you please try to formulate a law that safeguards our rights to medical treatment. Thank you."
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The Chair: Thank you very much for your presentation. Mr Chiarelli.
Mr Chiarelli: Thank you very much for your submission. Once again you, together with a number of other people, have demonstrated that there are some serious gaps in the legislation. There are thousands of family members who have gone through that experience and a lot of individuals have ended up doing themselves a lot of harm, because they have not received the necessary medical attention.
I am looking for your opinion. I certainly hope that legal counsel and other members of the committee would consider amendments which would be imposed by regulation which would acknowledge a certain small number of mental illnesses such as schizophrenia and manic depression, where there are known experiences where people resist medical treatment when they should be having it and they are then freed. I wonder if perhaps there could be regulations which will say that either the Ministry of Health or an advisory board will define certain illnesses where the presumption is reversed. In other words, if there is a known experience or record with a particular individual with schizophrenia or manic depression, there would be a presumption of incapacity and a presumption of consent for specific purposes and short-term purposes so that these people would not do themselves harm.
I have heard a lot of people who are very concerned about the legislation as it exists now and as it is proposed. I wonder if you have any comments as to whether or not that might be an appropriate approach, where the onus would be reversed for people who have had a record of certain illnesses defined by regulation. It certainly would take a lot of pressure off the medical practitioners if they knew the onus was in favour of giving treatment rather than opposed to treatment.
Witness A: Yes. I would find that very satisfactory. That is really what I am asking for, that it is recognized there is an illness and that we do not always have to start at base one, taking him in and deciding whether he is capable.
Mr Chiarelli: The one weakness of this, of course, would be the fact that it would not apply to first-time situations.
Witness A: I realize that.
Mr Chiarelli: That is a very significant gap. Perhaps people could put their minds to how that could be addressed. But it occurs many times in repeat situations with a small number of mental illnesses, and most particularly with young people as well, and the legislation has got to address that particular situation.
Witness A: Yes. I emphasized here short-term medication, because there was a tendency, which I think is not so now, to keep patients on this heavier medication that brings them down from the mania. It is a very unpleasant drug. I think there is a tendency now, once they have got them into normalcy, to try and withdraw them from that medication and maintain them on lithium, which at least for my son has no known side-effects.
Mr Chiarelli: I will be proposing amendments to cover that if the government does not and I am in the process of seeking some advice from medical practitioners who would be of some assistance in that area.
Mr Poirier: How much time do we have?
The Chair: A couple of minutes.
Mr Poirier: I looked at your recommendations and whatever, and obviously I am sure all of us are trying to put forward something that will be in the best interests of everybody.
Suppose your son decides not to go, to stay away from medical treatment or whatever, and you know that he needs it. What do you see as the mechanism to unite your son and the medical treatment he needs? How do you do it while protecting his rights? How would you see the law being able to do this?
Witness A: By having him appoint a power of attorney under the new legislation, or substitute decision-maker, write out what he would like under these circumstances, describe his past experience -- he could even make it for a limited time that has to be renewable to safeguard his rights -- and request that his wishes be carried out that he be given this.
Mr Poirier: In your first recommendation that I am considering here, I presume where you say the substitute decision-maker could be empowered to contribute opinions as to the person's capability, and such opinions must be taken into consideration by the health practitioners and the law -- I try to imagine the real case situation.
If I were the substitute decision-maker and I were asked to give my opinion as to, "Yes, this is my son, and this is what I think you should do" -- not being a medical authority, obviously you would have in hand some kind of information to back up your claim that your son has such-and-such a condition. I could never on my own initiative make an informed medical decision as to the nature of what would happen to my son. Somebody would have had to help me identify this. Maybe in the beginning I could guess what it is, but after a while surely I would have an informed opinion based on medical records or medical evidence or whatever; surely not just my own.
In that first part of your recommendation, if the health practitioner came up to you and asked the substitute decision-maker, "Well, what's happening here?" surely you intended that to mean that you have some informed opinion here on a piece of paper, an official document that says --
Witness A: Yes.
Mr Poirier: I am sure there could be some situations where the person who is need of health services, in a situation where the family is not supportive or the substitute decision-maker is there for the wrong reason, could end up being on the short end of the stick. You admit that, I presume.
Witness A: Yes.
Mr Poirier: Obviously not in your case, but in the worst-case scenario where the rights of the individual may be threatened, we are trying to make sure the law that will be brought forward will plug as many of the loopholes as possible.
Witness A: Yes, of course.
Mr Poirier: So what would be the difference between the first and the second? I presume in the first recommendation, you would submit a medical decision based on the legal document that makes you the substitute decision-maker that would say: "This is the nature of the decision. This is the wish of our son. This is what he has mentioned, and if he has a downfall where he claims he doesn't need medication, there is what it says." But the opinion of the person's own medical practitioner, as in your recommendation 2, would not be at that point different from what you would show the initial health giver in number one.
Witness A: That is true.
Mr Poirier: Is that correct? Have I understood that well?
Witness A: Yes.
Mr Poirier: Okay. Thank you very much.
Mr J. Wilson: Just thinking of Mr Chiarelli's model, I do not really at this point think that would work, in terms of listing diseases for not the first but subsequent occurrences of difficulties or sickness.
I would like to ask, though, because you raise some excellent points that have been raised before, and I need a clarification for my own mind, perhaps from legal counsel. I guess the problem you raise, if you were to get guardianship of your son or power of attorney for personal care -- as you say, when your son is presented to a physician who probably does not know him at all in the emergency room and he is deemed capable, he can then refuse treatment.
Mr Fram, perhaps you could tell us, first of all, that scenario over again. Second, where in that scenario is there any input from the parents?
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Mr Fram: In the bill or the group of bills before you, there is actually nothing that addresses the issue these parents have raised. In fact, he does become capable, and when he is capable, a guardianship order could not continue. Guardianship in those situations does not work. Powers of attorney for personal care depend, in essence, on an assessment of incapacity.
We have a lot of bridges to cross. We have to somehow get the person to an assessor, and the problem of getting people to an assessor is that somewhere this right to coerce them at some stage of the illness has to exist. We have a citizen and somehow other people -- the police, parents, friends -- have to get the person to an assessor. There is no right given and it works.
The idea of power of attorney for personal care works for the elderly in facilities etc, but we now have a grown, adult person who does not want people to take him to an assessment. Then we have the central dilemma of a finding of incapacity. As pointed out, people with bipolar disorder appear competent; that is, given the ends that they are suggesting at the time they are manic, they can tell you how to get there. If they want 15 houses, they know how to go to real estate agents, arrange for tours of the houses and put a deposit down. It is a problem. There is a question of how you get a finding of incapacity to operate in the circumstances.
We have a number of great hurdles. We cannot, as a matter of law, simply choose people with bipolar disorders, or people who are diagnosed that way because there is a problem in diagnosis, and overpower them.
The issue of looking at some pre-validated power of attorney is one that has been raised. It is being raised by the Friends of Schizophrenics, and it is one we are looking at, but it does require a lot of coercion in the process, and the only source we can look to for authorization of use of such force by friends is the person himself or herself.
It is looking at those kinds of issues and the benefits versus the detriments that we are in the process of dealing with now.
Mr J. Wilson: Could you not, in a balance of rights -- I mean, where necessary, the assessor, the physician, assesses the patient. What about a model where somebody assesses the parents or the friend who is trying to act on behalf of the patient? In that process, say you were to find that the parents are indeed loving parents, that there has been no history of abuse and that indeed what they are telling you is without question for the betterment of the patient. If that were found, is there not a way to have their opinion then weighted into the decision?
Mr Fram: I think that in the idea of identification, one of the notions -- to take a perfect example, or a very simple example, getting out of the psychiatric field, if we are an alcoholic and we know we go mad if we start drinking, should we be able to tell our two best friends, "If you see me pick it up, pick me up bodily, carry me out of the bar and lock me in the barn until it passes"? Is that something we ought to be able to do in a document of our choice when we are sober?
That is the kind of notion: to give the recognition to somebody who knows us, knows our pattern of behaviour as a triggering device -- our family physician -- but to make sure that the document itself initially is voluntary; that is, that it is not coerced by family, that the condition under which it operates is clearly defined, that the people who are to determine the existence of the condition are clearly defined and the limits of its operation are clearly defined, and yet authorize some degree of coercion. Taking me to the physician, taking me to whoever is the assessor are all things that are pre-authorized by the individual himself.
Of course, you have to recognize that this can be used if we have someone with a bipolar disorder. They can also say, "Take me to a monastery and not to a mental health facility," or "Take me to the country." So the document does not necessarily come to a result that the people who are suggesting it think is natural and automatic.
Mr J. Wilson: I think one of the problems with this legislation -- it reminds me of the Charter of Rights and Freedoms -- is that it is based on protection of the individual, and one of the debates we should have is whether there are groups rights involved in this.
Mr Fram: The charter, in fact, governs everything we are doing in this, and there is nothing, as lawmakers, that we can do to avoid it. It does say that we cannot choose schizophrenics and people with bipolar disorders and say, "There is a whole new regimen that takes away your rights up front." So yes, everything we do here is governed by those central principles.
The challenge is, working within those principles, can we have an answer that meets their son's needs? That is the difficult but challenging effort we have to make.
Mr Winninger: To follow up on what Mr Fram just explored, it seems to me that your suggestions are very good ones, and in most cases one would hope that the psychiatrist dealing with your son would be governed by these considerations.
The challenge comes when you want to legislate it. What you are asking for basically is a kind of waiver where your son could either express orally or indicate through the means of that letter that when his perception is clouded by the manic phase, if you will, he cannot make rational decisions about what treatment is appropriate. So nine times out of 10, I will grant you, it would be more appropriate, perhaps, to treat your son than not, because it would accord with his own wishes. It would be an authentic form of decision-making.
On the other hand, perhaps in one case out of 10, your son may not really want the treatment. He may have good reasons for not wanting the treatment. I am not talking about extreme examples like the last one -- I do not know if you were in the room -- where electroshock was given and the mother was convinced that it was appropriate. Let's say the 10th time the psychiatrist indicates: "I've got this new wonder drug, clozapine, and it seems to be doing a marvellous job of curing schizophrenia. On the other hand, in one case out of 20 it causes severe side-effects which could be life-threatening."
Your son, notwithstanding that he is in a manic phase, may have the capacity to say, "I don't like these side-effects," and yet he has signed a waiver and you are there in the presence of the psychiatrist saying: "Here's his letter. This treatment sounds marvellous." In that case your son's wishes, possibly quite rationally arrived at, would have been overridden. I think there is a very fine balancing. I would hope that our legislation can achieve that balance, but your situation is certainly a problematic one.
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Witness B: I just want to emphasize a point here. I realize we are talking about a very special case in the case of our son. We are using the term "mania," when I think it has to be understood that from mania you can slip into psychosis. This is a state of mind in which you are totally living in a deluded world. It is to protect our son who in his rational mind realizes that this is what happens, that we want the legislation to meet his needs and his wishes when he is in his rational mind.
When he is in a state of psychosis he is in another world. It is at that time that we need to fine-tune this legislation so that the highly specific instances such as for example our son's are taken care of. That is the thrust of our very special request, that the legislation take this into account.
Mr Malkowski: Thank you for your presentation today. You were talking about your son maybe being able to express his wishes in advance of certain kinds of treatments. I agree that he should have the ability to do that. We have had some presenters, such as psychiatric survivors, come forward. Some of them have been misdiagnosed as schizophrenics and they want the right to refuse treatment, but they do not have that. I wonder how we can match their needs. Do you agree that we should have some types of protection for those certain groups of psychiatric survivors who have already been misdiagnosed and have suffered from wrong treatments? Should we have specific protection in the legislation for those groups?
Witness B: Absolutely; no question whatsoever.
Witness A: Of course. I do not envy you the job of doing it, but of course they should.
Mr Wessenger: I am interested in your suggestions. It appears to me you are suggesting that in the criteria in determining capacity, right now many times important criteria, such as the knowledge that you have about your son, are not taken into account; second, the nature of his illness, and third, the evidence of his own medical practitioner. You would like to see those taken into account in terms of capacity and you would like to make sure the system did that, is that correct?
Witness A: Yes.
Mr Wessenger: To me that seems a very reasonable process.
Witness A: It does, but the law does not allow that at the moment.
Mr Wessenger: I would think that in a proper assessment it ought to be taken account of.
The other thing I am going to perhaps suggest to you is that a lot of the problem is the timing and speed of the process. Is that fair? Is that one of your concerns?
Witness A: Yes.
Mr Wessenger: I suppose you would say to us that if there is any way we can work to expedite the process, particularly with respect to situations like your son's disease, that would be something that should be looked at?
Witness A: Absolutely, yes.
Mr Wessenger: That is not changing the law. You might just give some more priority to determining capacity with people having diseases such as bipolar. It is certainly something that could be looked into. I think it is an interesting concept. I would like to thank you.
Witness B: In our own son's case it is extremely dramatic that he can slip or slide into psychosis, and upon receiving the appropriate medication, within 48 hours he will come back to sanity and say, "Thank you, mom and dad; I'm back," that sort of thing. This has sometimes been relayed to us by a long-distance phone call from Kingston or somewhere when driving along the 401 he has suddenly woken up.
I emphasize the short-term treatment, the incredible effectiveness of this in our case. It is access to that which is sometimes jeopardized by ambiguous legislation and rules. We have had to do all sorts of terrible things, painful things, to have him arrested by the police and get the necessary form under very unpleasant circumstances. We are talking about short-term treatment with drugs in the case of our own son.
Witness A: I should add that at the beginning, the first time, we were very anti-drug people. The first time he had one of these episodes at home we decided not to give him medication. We decided we were going to see it through. We were going to let him ride the mania and we thought normalcy would come back. This was going on for six weeks of no sleep. We are going crazy; dangerous things happening. In the end we got him in. We had to. We do know that without this intervention it is not just a matter of him coming down as he does when he is on the medication.
The Chair: Thank you, Mr Wessenger. On behalf of the committee, I would like to thank you, as concerned parents, for coming and giving your presentation this morning.
FAMILY ASSOCIATION OF MENTAL HEALTH IN ETOBICOKE
The Chair: I would like to call forward our next presenter, from the Family Association of Mental Health in Etobicoke. Could you please identify yourself for the record and then proceed.
Mr Sande: My name is Bill Sande. I am chairman of FAME. My associate is Judy Wallace, who is the coordinator for FAME. I would like to make a few introductory remarks, sort of an overview of the situation as I see it, and let Judy speak to the details of the legislation that is proposed.
In our association I would say families are unanimous in one objective, and that is to see their ill relative well. They would like to see the person well, participating in society up to his or her capability with an opportunity for a reasonable quality of life. Our membership is approximately 150 families. We have been organized since 1989 and last year we were incorporated. One common observation I make about our membership is that most of the membership is middle-aged to elderly. They are people who have been dealing with a problem for an extensive period.
My own personal experience is 12 years of living with mental illness. I can say, the same as the family before us, that it is a draining experience and results in a substantial loss of productivity for those closely tied as care givers. People never seem to realize or take into account this loss of productivity to society, not only in the ill person but in the members of the family who are the care givers as well.
The Mental Health Act has presented many impediments to a family. The ill persons must be deemed dangerous to themselves or others prior to receiving treatment. Another obstacle that families face is one of confidentiality. Families may be excluded from treatment information and upon discharge from hospital receive no counselling regarding the aftercare of the ill individual.
The Mental Health Act requires that families avail themselves quite often of legal advice when they are first confronted with a mental illness. Patients, and rightly so, have access to very competent, expert legal aid whereas families generally have to approach their family lawyer, who is not well versed in Mental Health Act matters. Now we have more legislation added to the Mental Health Act and we are creating what I would describe as a bit of a legal minefield for families to try to really understand what they may do and what they may not do with respect to the treatment of their ill relative.
Families and patients I have spoken to, and I underline "patients" as well, emphasize to me the need for continuing treatment, not necessarily to stop treatment. An awful lot of these people rely on treatment for their continuing functioning and day-to-day wellbeing. I have observed first hand the treatment given to mentally ill patients. I have seen and witnessed the abuse of such treatment -- excessive dosage of neuroleptic drugs that render the patient extremely docile.
Significant side reactions attend those drugs. I have seen misdiagnosis, just as was indicated by the witness speaking previously, where people who have been sexually abused early in their life have been treated as schizophrenics when they are not schizophrenics. I can understand their resistance to taking neuroleptic drugs or electric shock therapy. In my case, I have a son who had a massive head injury 12 years ago and has been treated for schizophrenia for 12 years and is now being diagnosed as having a head injury. I am a moderate person here expressing a moderate viewpoint on behalf of the law and the laws as we see them.
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In my previous work experience I had considerable dealings with large construction projects. When I started my career the agreement consisted of a handshake with the contractor. Ultimately the contractor's legal document may be signed prior to the completion of the job. Everything was done in good faith. As we grew and went out for bids on larger and larger jobs we would have five or six contracts to read, trying to understand what our responsibilities were and what those of the contractor were. A thought dawned on me: Would it not be wonderful if we had our own contract, seeing as how we had a whole battery of lawyers. Instead of us reading six contracts we would let the contractors read our contracts, because we would know what was in that contract -- a very, very simple thought, and that was implemented.
You say what relevance is this to this kind of proceeding? The question I would like to ask is one with process: Who initiates the process of such legislation? Who hammers out the details? Who are the people present when all these legal arrangements are made? I know one thing for sure, that parents are not. Parents are not present when the drafting is taking place. We are told we are part of the problem. I understand that. We are the care givers, the place of last resort. We are the taxpayers. Does the legislation meet our needs or our objectives?
The bulk of our people do not understand these laws as they struggle with serious behavioural episodes and search for treatment. They are frustrated by a lack of service facilities and by a lack of their own personal training and they are now frustrated by more and more laws. As a family group, all we ask for is a level playing field. We do not want to be adversarial. We want input into the beginning of the process, not at the end of it. We want to reduce stress on our families. We want our ill relation well and fully productive in society, a taxpayer and not a tax drain.
Those are my general comments, and I will turn it over to Judy Wallace for her specific comments.
Ms Wallace: In outlining FAME's concerns about the pending legislation, Bills 74, 108, 109 and 110, it is important to provide an overview of our organization. FAME is a locally based family group in Etobicoke that includes the entire family. FAME is open to families regardless of the diagnosis of their ill relative. The families who are members of FAME continue to have active involvement with and provide active support to their ill family member. That support may take the form of residential care, family support, social support, advocacy, emergency care or any combination.
FAME is aware that there are many suffering from mental illnesses who depend on their medication and treatment, and access to hospitalization when necessary. However, there are also medications and traditional medical treatments that preclude positive results for some conditions and situations. Mental illness is a broad category that includes some conditions that can be attributed to life circumstances, as well as those that fall more clearly into the category of illness or chronic condition. For those who feel that the existing mental health system has been of some help despite its shortcomings, protection is important, but treatment is equally important.
FAME supports and endorses research to determine causes of mental illness in the hope that this will lead to the development of treatments that are effective in symptom control without being intrusive. As families, each FAME member hopes for the day when their ill relative is able to maximize his or her potential and provide for himself a reasonable quality of life.
The fundamental goal of FAME is to reduce stress on families. This can best be done through treatment, programs and care that support and encourage each of the ill relatives to be as well as possible for as long as possible. This also includes planning for those times on the continuum when illness predominates.
In discussing Bill 74, the purpose of this bill does seem laudable. However, there are assumptions made that may not reflect an accurate assessment of existing situations. The bill assumes that an adversarial situation always exists between mental health survivors and the mental health system and between the mental health survivors and their families. Although this may be the case in some individual situations, it does not reflect what many families and their ill relatives feel. The enactment of this legislation to protect the few disregards the needs of the many.
The role of the advocate as it is currently enacted is a narrow, legalistic presentation of a complex situation. If the advocates were instructed and directed to assist the individual in assessing the whole situation and the long-term ramifications of a decision, then their role would be seen as responsible and sensible. However, nowhere in the existing situation with advocates in the provincial hospitals or in this proposed legislation is there any indication that the advocate's role is to present a balanced view of the existing situation. One can only assume that the advocates, with the current job description, will continue to fulfil the role in the traditional way. That is not to say that individual advocates do not act responsibly, however.
When explaining the individual's rights, the advocate should also outline the individual's responsibilities. Those responsibilities include a realistic consideration of the consequences of any decision -- to accept or reject treatment or any part of treatment, to remain in hospital or to leave, to accept responsibility for accommodation and basic needs.
The Advocacy Commission is composed entirely of survivors, with no consideration of the advocacy needs of families. Although there are groups like FAME that do advocate both individually and systemically for and with families, with the increasingly legalistic process involved in obtaining mental health services, an advocate mandated by the government to address family needs, support family organizations and represent a family perspective is critical. Families represent the largest single group of care givers. They are unpaid, expected to perform their jobs prior to any training and given little access to training and are available when no one else is.
The bill states that the role of the advocate is "to acknowledge, encourage and enhance individual, family and community support for the security and wellbeing of vulnerable persons." Would this not be more easily accomplished if there were family representation on the Advocacy Commission?
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Families, like survivors, need their own groups to work exclusively for their needs and issues. But like the survivors, their input and access to the system needs official support. Families also need the recognition and protection in law that ensures that they will not be abused by those professionals involved with their ill loved one. They also need a method of recourse that protects their ill relative from retaliation.
Bill 108: This bill clearly outlines the requirements for a judgement of capacity that takes into account the appreciation of the consequences of action or lack of action. However, it does not provide any guidelines or qualifications for that appreciation.
For instance, if an individual whose behaviour would indicate that he or she is ill states that he or she understands that by refusing admittance to hospital he or she will have no accommodation and in December that is all right, is that an appreciation of consequences or a disregard?
Although the bill clearly outlines power of attorney and guardianship for property and personal care, it is unclear whether these functions would fall under the same jurisdiction or whether they would fall to different jurisdictions or different people. It is important to provide a process that would permit both possibilities, as in many instances of mental illness, control over fiscal matters can become a very contentious issue best left to the control of strangers, whereas personal care often needs the historical connectedness of family, who will remain involved.
Bill 109: Consent to treatment as outlined in the Mental Health Act is very similar to what is being proposed in this act. The difficulties experienced by those implementing the existing legislation seems to have had no impact on the development of Bill 109. In many instances of psychosis, the ill individual is capable of incorporating the assessment procedure into his delusional system, thus appearing quite rational. If the exhibiting behaviour were placed in context -- ie, psychosocial history from previous assessments, if existing, file notes or reports from physicians of record and/or family -- then a more accurate assessment could be made by the attending physician.
Although informed consent is always the preferred methodology, it is not always the feasible option. In the proposed bill, the provision for determining capacity, "able to understand the information that is relevant to making a decision concerning the treatment and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision," does not consider that acceptance of a poor consequence may be a reflection of illness rather than a real understanding. Again, there is no benchmark to measure an individual's understanding of a situation. In other words, is this the kind of decision this individual would make in normal circumstances?
If an individual, in a state of rational thinking, sets out the course of treatment he or she feels is necessary, excluding the treatment that is not wanted, and appoints an attorney under the power of attorney, that individual should feel safe in those decision. However, what safeguards are there to ensure that the "rational decision" will be honoured if that same individual, in a different state of mind, expresses a desire to revoke the power of attorney?
Bill 110: This bill is clearly a housekeeping bill intended to amend a vast range of legislation so it is all consistent with the preceding three bills. The question arises as to how all those who worked within the range of legislation from the Drainage Act to the Mental Health Act will be aware of the implications of the proposed changes. Will materials be developed for those who are not trained in jurisprudence that will explain in clear, simple language what the bills mean, who is affected and how these bills affect other bills?
Finally, what provisions are being made to assist the medical profession to accept these changes as a routine part of their work? Those who have encountered the response to the Mental Health Act are aware that many psychiatrists adopt a stance of narrow, legalistic interpretation that paralleled "work to rule." Further legal requirements may have the effect of reducing the possibility of treatment, even for those who are requesting help in a clear manner.
The basis of this proposed legislation is clear, as both a change in philosophy and a response to court decisions. However, for the families, individuals and professionals who will have to work with yet another set of laws, the mental health system is beginning to feel like an onion. For each layer that is peeled away, there is yet another layer to peel. A system that has become excessively complex to access has the effect of reducing access as well as ensuring protection. Is there not a way to provide a comprehensive piece of legislation that protects and provides access without needing a law degree to get help?
The Chair: Thank you very much for your presentation.
Mr Chiarelli: Thank you very much for your submission. A lot of the comments you have made have been common to other presenters who have been here, both in the case of advocacy and the other more technical legislation. I share some of the concerns you have expressed in this legislation, and my concern is that the government appears to be in a legislative straitjacket. They are taking the traditional approach of going through first reading, second reading and coming into a committee, and then trying to presumably amend the legislation to take into account a lot of the concerns that have come forward.
In this particular instance, there is nothing approaching a consensus on the part of the groups that have come in here. We have had groups such as the College of Physicians and Surgeons, we have had esteemed presenters such as Dr Lowy and we have had people who are working in the field such as yourselves express very serious concerns about the legislation, and one of the overriding concerns is that there is no consensus on how to approach this legislation or how to implement this legislation.
I think it is important that there be a consensus with this legislation, because it affects so many people personally and emotionally and so many people working in the field. I am just wondering if you are of the opinion that we would come up with a better piece of legislation and a better solution if we were not dealing with live legislation. If we had a draft bill that could be worked and reintroduced at a later date, do you feel more people would be able to respond in a positive way, such as groups of parents or what have you? I am concerned about the shotgun approach of the legislation, that we are in committee, we are going to go to clause-by-clause and then it is going back in the House for third reading.
My assessment is that clause-by-clause is not going to be able to address this legislation, because there are too many concerns, first, and second, there is nothing approaching a consensus on legislation that must be dealt with by the community at large. Do you have any comments on that?
Ms Wallace: I would tend to agree with you on that. I mean, clause by clause it is fairly easy to say, "Yes, that's okay, that's okay, that's okay." It is when it all fits together and you are looking at this package that people are going to have to work with and understand that it becomes a very complex issue.
If it went to a situation where there were affected parties involved in hammering out something from new draft legislation so that you had representatives from all the groups -- from families, from survivors, from physicians, from social workers -- in a balanced kind of way, as well as obviously people from the Legislature, you might be able to find that consensus. You might be able to find where the balance would be. I do not think these bills provide that balance. I think the intent was very positive, but I think the outcome is going to be miserable.
Mr Chiarelli: But the government sees these proceedings as leading to improved, refined legislation. Do you have any confidence level that the legislation as it is presently constructed can be made appropriate by refining the particular sections by amendments, or do you think there needs to be a broader consensus before we go to specific legislation?
Mr Sande: I guess I would say there needs to be a broader consensus. That would be my reaction. I do not know what Judy's opinion is.
Ms Wallace: Yes.
Mr J. Wilson: Thank you for your presentation. When Mr Chiarelli talks about a legislative straitjacket, the way I see it, and the reason that with the last presenters I asked legal counsel about the charter of rights, is that I suspect we know from the discussions we have had both in committee in the last week and in the many meetings each of the caucuses have had with groups on the side that the consensus would be that you have to strike a balance between the rights of the family -- the group, as it were -- and the individual. The legislative straitjacket I think this government is in -- and something you can thank Mr Trudeau for -- is the Charter of Rights and Freedoms.
You do not have any rights. You are the family. You are the group. The charter is designed, and all legislation must conform, to protect the rights of the individual, and the individual is supreme in our society, contrary to my party's philosophy. That is the way society has gone, and we have seen a very legalistic world since 1981-82 when the charter was introduced. So in spite of the fact we all want to see a balance, I do not know how you can do it.
I would ask the government, though, whichever parliamentary assistant, whether any tinkering has been done with the definition of "capacity." I see every other link that one has to go through under this legislation as weak. But the strong one is that it seems to hinge on the terms "capacity" and "incapacity."
Probably the only way to give some rights to the family would be to make it easier to deem someone incapable; hence power of attorney for personal care stays in effect or guardianship stays in effect. One assumes the family at an earlier point would appear before the court under this legislation and acquire those powers. I may be a little crazy, Mr Fram, but I am fishing here.
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Mr Fram: Just to address the question, we have given a lot of thought to the notion of capacity. But it is quite interesting that even then you have the Community Living people who spoke to us last week who essentially deny incapacity exists. You will see other groups who in fact want to decrease the level of capacity for other purposes. It becomes a very challenging situation.
Mr J. Wilson: That was very helpful, Mr Fram, but honest.
Ms Wallace: Could I make a comment on this? One of the things I feel very strongly about in this is that yes, we have legislated rights until we can wallpaper with them. But we have left out the underlying concomitant side of that, which is responsibility. If you have a right you then must have a responsibility that goes with it.
Mr J. Wilson: I did see that in your brief and it is a very good point. I think you suggested the advocate would have to explain the parallel responsibilities: that you have some responsibility to society if you take decision X. You could affect Y.
Ms Wallace: And responsibility to yourself.
Mr J. Wilson: That is a good point. I suspect the government's answer would be, "Well, that would be included in the training of an advocate." The legislation does not address what an advocate is really to learn or what the regulations will be. Who are these people who are interfering in your life? I do not know. I suspect from some of the people who have appeared before us who tell us they are going to be hired as advocates, or hope to be, that they are people coming from very diverse backgrounds, not necessarily from any particular professional field.
Mr Malkowski: Thank you for your presentation. It was very helpful. One interesting thing you mentioned was that between the mental health survivors and the system it was adversarial and perhaps the survivors had an adversarial approach between the survivors and the family. You said we looked at the needs of the few to protect the few and ignored the majority, correct? I am just wondering, you have not mentioned anything about the family,and the struggle between the system.
Persons within the disabled community said that they have a struggle with some of their family members. I think you are right. We do need to develop a balance. I am just curious. Do you agree about finding a protection for the vulnerable person but people who have already experienced abuse from the family, or do you think that is not a common situation?
Ms Wallace: I think in situations where there is abuse from a family -- and that certainly has happened in a lot of cases obviously; the number of cases of sexual abuse clearly come from some family connection -- those families do not tend to still be involved. The survivors have removed themselves from that situation and created a different kind of network.
I think we are talking about adults who are in a situation where they are still affiliated with their families and so have rights to associate with and name people who make sense to them. With an abusive family it would make sense that they would not name that person when they were in a good state of mind as someone to be their power of attorney or guardian. I think what we end up confusing is the sense that if somebody is in a disabled situation they are stuck only with people who are abusive to them. There may be situations of that, I am not denying that, but I think that is not in a large majority of cases, particularly in an urban setting. That may be more true in rural settings where resources are fewer. But I think the families that remain involved tend to be families who care and who will put up with things over a very long haul.
Mr Malkowski: This legislation, the Advocacy Act, I think clearly supports the family, but to support and protect the vulnerable person is the goal. You are saying the legislation would not help the family. So you are in agreement, then, that legislation should help the family where their goal is to protect the vulnerable person, correct?
Ms Wallace: Yes. The existing situation is that the families are the care givers. They are given no indication and in a lot of cases many of the medical practitioners throw up the Mental Health Act as it exists now and scream, "We can't talk to you because of confidentiality," when maybe all a family wants to know is what the side effects of medication are. Yet they are isolated from basic information now. This is going to make it even worse.
There was an instance last week where a family member was very concerned because her son had walked out of hospital after having had four suicide attempts in one day. We were calling to find out if they had reported him missing to the police. That strikes me as a pretty simple request for information. The head nurse on the floor of that hospital said, "I am not permitted to even tell you I recognize the name." I think we are in a position where the letter of the law has transcended the spirit to the point that that young man is at serious risk because nobody will even talk about whether he was or was not there or that they have ever heard of him. Where does that leave the family in trying to help when someone is out on the street in a psychotic state?
Ms Carter: Thank you for your thoughtful presentation. My points are similar to Mr Malkowski's concerning Bill 74. I am concerned that you think the bill assumes an adversarial situation between the mental health survivor and the family. Of course the prime purpose of the advocate is to listen to the individuals and to empower them. Of course a lot of people do not have family or friends and really have to have that. I agree with you that in most cases the family is supportive and in some cases the advocate may help the patient and the family collectively, for example, as happens now. There are advocates in mental health institutions and they can inform the family sometimes when there are problems that they can then follow up on.
There are a few cases where the family is part of the problem and you mentioned that sometimes a family can be abusive. Sometimes I think the family can be part of the problem in a much more subtle way. I think it is these rather complex cases where the need for an advocate to go straight to the patient is of vital importance. I hope you will see that that is something we are trying to do in this act: to make sure that person is listened to and the circumstances are fully gone into. As far as representation goes, it is hard when you are setting up boards and commissions and so on to include all the people who should have a voice. I believe on the Fram commission there were 24 people representing different aspects of the problem, and even then there can be complaints that not enough people are being represented there.
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Mr Wessenger: It would seem to me that the Consent to Treatment Act is in effect increasing the role of the family. First of all, the preferential persons who have the right to consent to treatment are the family members unless there is a power of attorney, so I think that would assist the situation.
Second, the Consent to Treatment Act does permit a family member, once a finding of incapacity is made, to admit the patient to treatment if the patient does not object, so I think that also gives you a role. Once, of course, the incapacity is found you have the right to informed consent as a family member, as the preferential person, so I think really the Consent to Treatment Act strengthens the role of the family in this regard.
Ms Wallace: It provides on one side without supporting on the other side because there is no change in the way things are currently done. If a family has the authority to consent to treatment on someone's behalf because they have that in writing or it is an assumption because it is a close family member but they do not then have the freedom to know what the treatment is or what the medication is or what is proposed, where does that leave them?
Mr Wessenger: They have the right. Under the new act they will have the right to be informed.
Ms Wallace: It is not that clear.
Mr Wessenger: I think it is quite clear. Informed consent has to be to all treatment. The substitute decision-maker has to give informed consent; otherwise it is not a valid consent.
Ms Wallace: It is going to be a very interesting prospect teaching this to the entire medical profession.
Mr Wessenger: I think perhaps if you would just look at section 18 of the Consent to Treatment Act that would clarify it for you.
Ms Wallace: Yes. Is that going to amend that section in the Mental Health Act which deals with confidentiality which puts parents in a position, as the case I cited, of not even being able to find out from the medical profession whether in fact their relative was in a hospital when he disappeared?
Mr Wessenger: I understand this will override the Mental Health Act provision.
The Chair: Ms Wallace and Mr Sande, on behalf of the committee I would like to thank you for taking time out this morning to come and give us your presentation.
Ms Wallace: Thank you.
INTEGRATION ACTION GROUP OF ONTARIO
The Chair: I would like to call forward our next presenters from the Integration Action Group of Ontario. Good morning. Could you please identify yourselves for the record and then proceed.
Mrs Troyer: I am Katherine Troyer.
Mr Nathwani: My name is Rashmi Nathwani. I am a member of the board of directors and a parent.
Mrs Troyer: I am past president of the Integration Action Group.
The Chair: Please proceed.
Mrs Troyer: The Integration Action Group is an action-oriented association of parents, educators and concerned citizens whose goals are to help families achieve integration for their children and to advocate for attitudes, practices, policies and laws that promote integration in education and in the community.
We believe the Advocacy Act in principle is a good one. The act empowers the advocate but does nothing to enable the vulnerable person. Giving a person an advocate does not necessarily make them less vulnerable. My son Matthew Lutes had a mother who treasured him, and he was still involved in the Grange commission in 1981. Having an advocate who always was with him did not prevent him from being vulnerable. My son would have been less vulnerable if he had the right to fair and equal treatment in Ontario. This still does not exist even in 1992.
My son Mark was born in 1983 and was also disabled. Being disabled did not make him vulnerable; society did. They consistently tried to set their standards of quality of life on him and he just could not conform. As his family we not only accepted his uniqueness; we celebrated it -- but not without its price. The medical field was appalling and the education system was inaccessible. Nothing came without an incredible fight. On numerous occasions Mark was signed out of hospital for his own safety. There is no justifying non-treatment of any human being.
If you truly want to make people less vulnerable then enforce the Constitution that we hold so sacred in this country.
It is our belief that there is a distinct difference between an advocate and a social work model. We would not want to see a social work model used in setting up the advocacy office.
We believe there will not be enough advocates to go around. If that is the case, their job may become one of crisis intervention rather than empowerment. It is our strong belief that we would like to see the advocacy system become properly established without exceptional demands for rights advice created by the Substitute Decisions Act and the Consent to Treatment Act.
With respect to Bill 109, we believe in the principle that persons aged 16 and over are presumed to be capable. We have some concerns around the access of an advocate. If a person who is over 16 can access an advocate, if he is seen as vulnerable in a treatment situation, we feel a child should be able to access an advocate under the same situation.
Only medical considerations are appropriate in making medical decisions, not consideration of whether the individual will be developmentally disabled.
The Integration Action Group cannot accept or condone varied commitment to anyone.
Guardianship by definition removes a person's decision-making rights and vests them in someone else. The underlying purpose of guardianship is, and always has been, to make legal provisions for the care, supervision and control of the property and of the person of those people who are considered by others not to be capable of making decisions for themselves. We do not believe anyone should be subjected to this fate.
Deprived of the right to make choices, we are nonentities, non-persons whose lives are controlled by the choices of others. It is our belief that any new law should respect a person's right to take risks, as this is closely related to quality of life. We feel very strongly that taking away all risks from a person's life is destructive and leaves him with little purpose. Risks can exist and can be minimized with the help of family and friends. When the risks seriously jeopardize the safety of that person or others, a number of supports need to be in place, but the law should always be a last resort.
We believe some alternatives to guardianship are:
Parents, families and others can play a major role by encouraging and enabling the person with a disability to make his or her own decision. This recognizes that the labelled person is first a person with ability. For example, decisions about the use of money can be encouraged by using a joint bank account until the individual can manage an account of his or her own. The more independence we promote, the less the person will need to depend on others.
Personal support groups can be developed and maintained around the person. This becomes especially important when family support begins to erode or is simply not present. A caring group of people, including other family members, can provide ongoing support.
Ways of making individual advocates available to people who are labelled can be explored. Again, an advocate's role is one of support and assistance rather than substitute decision-making. Preferably, an advocate will be non-paid and committed to ensuring the person with a disability has authority over his or her own life.
We have also included a book that we released at the end of August called Sharing the Vision and we encourage you to read it.
The Chair: Thank you very much.
Mr Chiarelli: Thank you very much for your brief. I have a couple of questions to basically narrow down your concerns a bit more relative to the legislation. On page 6 you indicated, "We believe some alternatives to guardianship are." Are you suggesting that the legislation be amended to incorporate these three examples?
Mrs Troyer: Yes.
Mr Chiarelli: Are you suggesting that the guardianship provisions, as written, are inappropriate or that there should just be more alternatives? Maybe you could be a little more specific in terms of assisting the committee to understand exactly what you want.
Mrs Troyer: We believe that guardianship is inappropriate for disabled people. We have made people with disabilities vulnerable by segregating them and keeping them out of the community. We have realized that in our trying to bring people back into the community now. Subjecting them to guardianship would be a step backwards.
Mr Chiarelli: Is there some other model you would suggest of partnership between family or friends and a disabled person other than guardianship?
Mrs Troyer: There is the Joshua committee that has been set up around Judith Snow. There is Circle of Friends. There are things that are in the community that would enable people to be able to make decisions with support. Our suggestion is that we use every other means. You cannot just say because a person is mentally incompetent to make life or death decisions that they lose all their rights.
Mr Chiarelli: Unfortunately, a lot of people look at this area in legalistic terms. There are going to be people who have to deal with the disabled person, who are going to want to know whether that person has capacity or authority to enter into contracts or do various things or make certain commitments for themselves, whether it be medical treatment or living accommodations or what have you. It is important that you try to explain to the committee some sort of legal framework or context that this partnership could be placed in.
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Mrs Troyer: The partnership could be placed in with the advocacy role in most cases, and the advocate role exists in a lot of areas in the community already. The Ontario Association for Children with Learning Disabilities does it. Integration Action Group does it. There is a lot of support for disabled people in terms of advocacy in the community, and the advocate role would be that. We make decisions with support in normal situations. The disabled person should have that same right and not have those rights revoked only because they need assistance to make that.
Mr Chiarelli: Are you saying the present advocacy legislation as drafted is inadequate and you would prefer not to see it pass as is?
Mrs Troyer: No, that is not what we are saying.
Mr Chiarelli: It is a good first step, is that what you are saying?
Mrs Troyer: It is a good first step. What we are saying is, implement the Advocacy Act first and get that rolling before you bring in the other two bills, because the advocates are not going to be able to do their job with all three at once.
Mr Chiarelli: You want to defer enactment of the other legislation.
Mrs Troyer: Yes.
Mr Chiarelli: Do you agree with the terms of the other legislation, other than timing?
Mrs Troyer: No, not entirely.
Mr Chiarelli: You disagree with the substance of the other legislation as well.
Mrs Troyer: Yes.
Mr Nathwani: If I can just elaborate on the comments Kathy has made, in the first instance, on the guardianship act, we would prefer to see no act at all, just to be very clear about fundamentals, and certainly we find provisions of the Mental Health Act repugnant. In the event that you have to proceed with it, then there are significant provisions of it that need to be ameliorated. Our comments in the legalistic sense would be more akin to what the Advocacy Resource Centre for the Handicapped would present. I am not a lawyer, but I am very clear at least. I want to make sure I answered that part of your question.
Mr Poirier: On page 5, again, obviously your very sensitive point about guardianship, at the bottom it says, "When the risks seriously jeopardize the safety of that person or others a number of supports need to be in place, but the law should always be used as a last resort." Is that telling me, from what I think I read, that if you are going to be using it as a resort, there must be some last resorts where you need a law where guardianship, whether we want to or not or by lack of other choices, would be needed, or what?
Mrs Troyer: We recognize that the system does fail, but we are not saying that because the system has lapsed, that in law everyone should have a guardianship. We recognize the vulnerability is there, but we are saying there should be lots of other things implemented before you look at a guardianship. I mean, guardianship should be last resort; there should be nothing else; everything else in the system has failed.
Mr Poirier: Granted, but you recognize that if other options are tried there may be some specific occasions where you come down to that last choice.
Mrs Troyer: Yes.
Mr Nathwani: Can you give me an example?
Mr Poirier: No. I was going to ask you that.
Mr Nathwani: Again on a fundamental plane, I am talking, say, about schizophrenics, because I have heard a lot in the press about it. I have a son who is 16 who has been on medication. There are times when medication will ameliorate their behaviour, but behaviour is a way that we in the outside world see them. Medication is given to prevent them from humming or rocking. Let's think about this. If a schizophrenic rightly or wrongly chooses not to accept medication, I do not think the law should intervene and say, "You will take medication" even on a call of last resort. I am being very clear on a fundamental plane. What we are saying is that if you do have to put something in -- because we recognize there is a considerable lobby out there and considerable feelings among a lot of caring parents. The problem is not with the disabled person, the problem is with us in not trying to understand what they want, especially if they are non-verbal.
Let me add one last thing. Just recently we have seen discussion about facilitated communication. Unfortunately, we have only seen a five-minute clip on the CBC. I have read a little bit more about it. I have a son who has some autistic tendencies. I can tell you that when communication is facilitated with non-verbal people -- they have never spoken -- the first thing they talk about is not, "Can I have a cookie or oranges?" They talk about their deeper needs, "Why can I not go to a regular school?" or "Can I play with the other kids?"
The reason I am bringing this kind of anecdotal stuff to you is that I really have not seen an example, even with people with deep core needs, where you have to have intervention. Conversely, I can give you examples where treatment has been misapplied and people have been harmed for decades by it. The choice should be theirs. If you cannot get through to them, find other means of communicating with them, but do not enforce the law there. That is a fundamentally strong, radical view, but I am very clear about it.
Mr J. Wilson: Thank you for your presentation. I would agree. Last Friday, we had the former public guardian of Alberta also tell us that guardianship should be the very last resort.
Along the lines of Mr Poirier's questioning, in the case of schizophrenia you said the law should not intervene. I do not see it as the law intervening when someone is trying to make treatment decisions that are deemed by a number of people to be best for that individual, whether it be a personal care decision or a treatment decision. When the guardian is making that decision, it is people intervening, it is not the law.
I know many people who benefit from treatment. There is case of schizophrenia in someone very close to me. I can tell you that when they are incapable, I do not think it is my understanding of that person that is impaired; I think the person needs help. It is a chemical imbalance in the brain and some therapies do appear to work. I do not think it is my perception of the situation.
Mr Nathwani: I am not denying that therapy is helpful. All I am saying is do not let the medical profession make that determination, because de facto that is how it works. The advocate should inform the person, but if the person refuses to take medication, the doctor should not be allowed -- it becomes a little bit more difficult when it comes to close family. I trust family and friends more than I would trust a doctor. A doctor should never have that right at all.
Second, my son benefits from medication, I believe that, but if he does not believe it and he wants to pull the plug, I will honour it. It will be painful to me, but I will honour it.
Mrs Troyer: I think you are evading one real important issue. In the Grange commission, as parents, we never had the choice and my child never had a choice. Someone else made that choice for us and that was wrong. Nothing in any of this legislation addresses that. That risk is there. What happened at the Hospital for Sick Children happens all the time. None of this legislation is even going to address that issue, and the issue is the value of human life. When we address that and we say that disability has no bearing on whether a person gets treatment or does not get treatment -- you have treatment by right and that is it -- we can stop this insanity. You are having mass murders in Ontario and no one is taking responsibility or dealing with it.
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I adopted a little boy who has Down's syndrome two years ago, and in three instances in two years he has been at risk and been refused care because of his disability. That is crap. I will not tolerate it. That is my child.
If he had died in those three instances they would have said he had died of Down's syndrome, and Down's syndrome does not kill you. Neglect does and people's ignorance does. Address that.
Mr J. Wilson: I agree with you. I have a first cousin that has Down's syndrome and I notice in your book you mention that the first reaction of the doctors when the child is born is just let the child go. My aunt to this day -- my cousin is 33 years old now -- still cries when she tells the story. There is some education there, obviously, needed for the medical profession.
Mrs Troyer: I think it goes beyond education.
Mr J. Wilson: It is education because -- a startling statistic last week was that the number of abortions for people 15 to 19 is twice the number of live and still births in Ontario. If I am a doctor trying to reflect the values of society, I may say let your child go. Obviously twice as many people are making that type of value judgement. As politicians, we are here and we are told the Reform Party is popular because they are doing what the people want. If we did what the people wanted every day, you would have an even more screwed up society than it is. We have to balance these things with comments that you have made that I think are very important and all the other rights that are prevailing upon people these days.
Mrs Troyer: Without the right to life, the other rights are irrelevant.
Mr J. Wilson: I agree, but we tend to be a minority these days.
Mr Wessenger: Thank you very much for your presentation. It would be fair to say, though, that under the Consent to Treatment Act a parent has to give consent to treatment to a child. Would you not agree with that?
Mr Nathwani: Today, yes.
Mr Wessenger: You have one proposal you make, and I would like a little bit of elaboration on it. You say that, on page 4, "If a person who is over 16 can access an advocate if they are seen as vulnerable in a treatment situation, we feel a child should be able to access an advocate under the same situation." Do you believe a child of any age, or do you say --
Mrs Troyer: Yes, any age. There have been cases even in Canada where a child was born disabled and, because of the disability, the parents chose not to treat that child. That law was not upheld. Children's aid came in and seized that child. You have a choice as a parent to be a parent; that is your choice. But the child's rights should be the ultimate. It should not be the parent in the case of a disabled child.
Mr Wessenger: Are you saying that under the existing laws -- this is of course not related to this act but is related to children's services. There are protective services available to children.
Mrs Troyer: No. I fiercely argue that, because when my son was born disabled, we were told to leave him in the hospital and allow him to die and go home. He was born in 1983. This is after the Grange commission. That is bullshit. That happens all the time; even kids that are Down's syndrome.
The Chair: Excuse me, you will have to temper your language.
Mrs Troyer: Sorry. My son is two and he has been denied treatment because of his disability and he is Down's syndrome. Down's syndrome is no big deal nowadays. There are 10 years of studies that would dispute a lot of the things that people say; the mongoloid, vegetative state is no longer true. These kids are very productive in society and are very much a part of society and that, in many cases, is not taken into consideration.
When we took our son to the emergency with respiratory problems they said that Down's syndrome kids do this all the time and you can take him home. He was admitted 12 hours later in critical condition because he had tracheitis that had not been addressed and would have died if we had followed the doctor's recommendation. Those are normal things. That is standard procedure, that you keep a child for 24 hours after they have aspirated. We are not asking for special treatment for these kids. We are asking for the norm, and that is being denied, because when you take a child who is disabled into a hospital, they see the disability and that is the priority, that is the basis for their care, and that is wrong. I did not bring Alex to the emergency room because he was Down's syndrome; I brought him because he was not breathing. That should be the only thing that is looked at.
Mr Winninger: Just a couple of brief questions. I do not think anyone would disagree with you that guardianship should be the last resort. In many situations, the family, relatives or friends offer a benign influence that can actually empower the vulnerable person, and in some cases, the vulnerable person or the family may seek guardianship. But you would agree with me that does not necessarily diminish the empowering, the nurturing relationship that might exist between --
Mrs Troyer: I would question, if that was the scenario, why they would want the guardianship anyway.
Mr Winninger: That may be a good question.
Mrs Troyer: That is what I would question.
Mr Winninger: There may be circumstances where in order to maintain stability or consistency of treatment -- I would ask you this, though. Would you not agree that there are situations where there are no nurturing friends, family or relatives, or where there are friends, family or relatives but they are exploiting, neglecting or abusing the vulnerable person?
Mrs Troyer: Yes. I agree that exists, but would you penalize a person because he is isolated and segregated?
Mr Winninger: If you want to regard guardianship as penalizing, I submit that guardianship in a situation like that may be a lesser evil than abuse or exploitation.
Mrs Troyer: It may be the lesser evil, but what I would suggest is that you look at offering the person support, establishing a circle of friends. Do all that other stuff before you look at guardianship. Just because someone is vulnerable and isolated, there are ways of counteracting that without enforcing a guardianship.
Mr Winninger: So you are saying explore the least restrictive alternatives.
Mrs Troyer: Yes.
Mr Winninger: One more question, if I may. You made the point, as other delegations have made, that advocacy should precede consent to treatment and substitute decisions. Do you not run the danger, in that scenario, that advocates who visit with a vulnerable adult may be forced, if you will, into making decisions for the vulnerable adult that they really do not have the authority to make, simply because there is no framework for decision-making?
Mr Nathwani: We think that if you do not have substitute decision-making for the next couple of years, it is not going to harm Ontario. On a very fundamental plane again, taking the example you mentioned to Kathy Troyer a while ago, I am more interested in making sure the vulnerable adult has a good advocate, a good lawyer before he gets a good guardian. There is nobody to make a substitute decision, and decisions do not get made. I think that is the lesser of the two evils, until we sort it out.
Mr Winninger: I see.
Mr Nathwani: I am giving you a for instance now.
Mr Winninger: Thank you.
Ms Carter: Another aspect of the Advocacy Act is that it will have long-term implications in raising awareness as to how people we have dismissed as being disabled do have their points of view and their abilities and so on. How do you feel about this part of it; that it will, by raising societal awareness, make the kind of care you are thinking of more prevalent?
Mrs Troyer: That is all well and good, and doing that may help, but still, they need the right to that treatment. They need it by right, not just because someone chooses to allow them to have that treatment. It should be that they get it by right, period. That is not the norm in Ontario right now. And yes, they need to be educated and that education needs to happen, but still, they need to have that right that would ensure that if the other education falls through or is not followed up on, at least those people are protected by right.
Ms Carter: That is the bottom line.
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Mr Nathwani: May I just make a small comment on this? I will try to answer it in a bit of an oblique way. A lot of people, like the Advocacy Resource Centre for the Handicapped, will concentrate on a major charter case, and sometimes you have a major charter case that can affect the acts of individuals. I think the Advocacy Act is going to help us in the trenches, in the IPRCs, the various little tribunals in God knows how many different places where you cannot possibly have ARCH or lawyers like that interested in it. I think it will raise our sensitivity. Sure, there will be hitches; sure, there will be glitches. Things will not work out, and there may be occasional budgetary problems, but it will make it more pervasive and raise consciousness.
The Chair: Ms Troyer, Mr Nathwani, on behalf of the committee, I would like to thank you for taking the time out this morning and coming and giving us your presentation.
Mr Nathwani: Thank you for listening to us. You have been very patient.
ONTARIO COALITION OF SENIOR CITIZENS ORGANIZATIONS
The Chair: I would like to call forward our next presenters, from the Ontario Coalition of Senior Citizens Organizations. Good morning. Could you please identify yourselves for the record and then proceed.
Mr Triantis: I am Stephen Triantis, professor emeritus of economics, University of Toronto, and I am representing here the Ontario Coalition of Senior Citizens Organizations. My colleague is Mary Allen-Armiento, also representing the Ontario Coalition of Senior Citizens Organizations.
We looked at the three bills -- that is, the advocacy, substitute decision-making and consent to treatment -- and we found the advocacy the least satisfactory. Indeed, we thought it quite deficient. It is bureaucratic, it has a lot of bones and skeletons, and all you have to do is look at the table of contents; there is not much flesh on advocacy. The act is about advocacy, and that is the flesh. You would think that Bill 74, as it stands, would be a companion to another bill, the main bill, which would be on advocacy.
I am going to be more specific. The act is peripheral. It talks about what the commission of the advocates may or may not do, but not, first, what is an advocate and what are advocacy services, as we define in section 2 what is a vulnerable person. Advocacy is a vague and loose concept, yet the advocate is given a lot of legal authority by this bill, with legal implications. Should we not know what the advocacy involves? Even the French term is unsatisfactory. It talks about "intervenants," somebody who intervenes without being called. The advocacy has an implication of some mandate being given to speak for that person or to act for that person, so we are still left with ignorance as to what is an advocate and what is advocacy.
Second, who can be an advocate and what qualifications must he have? Sure, there is a paragraph in section 36 that says the commission may make regulations establishing minimum qualifications and educational standards, but what about questions about the relationship of the advocate to the vulnerable person and to the facility in which he is, and conflicts of interest? It is not comforting at all to leave all that to the commission and not to you; that is, our legislative representatives.
Third, and above all, what is the advocate supposed to do in order to serve the purposes of the act? All we are told is the conditions on which he can enter and obtain information. In section 36 we are told that the commission may make regulations to establish procedures and standards governing the provision of the advocacy services but not what these services are. What can an advocate request from a facility? What means does he have to enforce anything he is requesting, or does the commission have?
Even the goals of advocacy mentioned in section 1 are peculiarly written: "1. The purposes of this act are," and then (a), (b), (c), (d). Clause (a) may be "To contribute to the empowerment of vulnerable persons" etc, but clause (d) says, "To take into account the religion, culture and traditions of vulnerable persons." That is a condition, a parameter; that is not a goal, so it should not be there.
Fourth, the advocate is appointed by the commission or by community programs for, what, a period, ad hoc in each case? If for a period, how is he assigned to this or that case? By whom? What is the relation of the advocate to the commission? Is it a master-servant relation? This is not shown in the act, and it should be.
Fifth, what are the responsibilities and the limits and liabilities of the advocate? Here we have somebody who is given a lot of power -- and especially a lot of power and very important duties in the other two bills, 108 and 109 -- but we want to know what are his responsibilities as an advocate and what are the responsibilities of the commission that is sending him to this particular (a) or (b) case. What is the guarantee that the advocate is acting in the best interests of the vulnerable person?
If I may leave the advocate for a minute and turn to the vulnerable person, it is our feeling that an elderly person may be intimidated or afraid to act and to show that he needs an advocate. We know a lot about elder abuse in this province, or anywhere else. We feel that section 2 should be changed to read, "because of any infirmity or sickness" and so on "or other reason," or "because of other reasons has difficulty in expressing," because intimidation is tantamount to infirmity, which is what section 2 has in it.
In clause 7(b), reference is made to acting on the wishes of the vulnerable person. How about the best interests, and how about the wishes and the best interests brought into some compromise?
In subsections 19(2) and 21(2), provision is made for the advocate to meet the vulnerable person in a separate room, if possible. We do not like the "if possible." It should always be in a separate room. I do not see why it should not be.
In subsection 21(3), "The advocate must leave the premises promptly if the vulnerable person indicates that he or she does not want the services of an advocate." What if the vulnerable person is intimidated by the staff of the facility in which he is lodged? What if the vulnerable person does not understand the role and the purpose of the advocate? He may think he is a tax collector. What if the vulnerable person does not like this particular advocate but would deal quite gladly with another one? There are important things that we believe should be addressed.
Section 6, we think, should be rephrased. It says, "A majority of the members of the commission shall be persons who have or have had a mental or physical disability, illness or infirmity." So anybody who has, right now, a mental disability is eligible to be a member of the commission. That obviously is not intended to be so, and that is why we believe it should be rephrased.
We found, on the whole, this bill extremely bureaucratic and formalistic and, as I said at the beginning, we just believe this should be a third of a total bill on advocacy or an adjunct to a bill on advocacy. So much for Bill 74.
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If I may, I would like to say a few words about Bill 108. It is just these two bills that I will address. We have not got many comments on the Consent to Treatment Act, although if you have any questions we would be glad to respond.
In Bill 108 the advocate is assigned all kinds of duties in sections 16, 20, 27, 49, 59 and 74. Frankly, you would have to conclude that he or she would have to be a philosopher, a psychologist, a lawyer, an economist, a social worker and everything else all combined. He would have to be a Solomon, a Freud, a Keynes, a Mother Teresa and everything else all combined. I would like to see where we are going to get that kind of person.
Mr Poirier: Like an MPP, you mean.
Mr Triantis: Not quite, because he is a step above an MPP.
In section 45, the attorney or guardian, the personal guardian, has to be at least 16. We have found that this is a going a little bit too low. The person should be at least 18. It is odd that in order to serve as attorney or guardian of property you have to be 18, but that on this more important and difficult problem of dealing with a human being 16 is enough.
Reference is made in a number of sections, and I do not need to give you the sections, there are three or four, to a management plan. I just wonder whether this management plan should somehow be defined and described and delimited. The words may imply something formal, something professional, something grandiose. They make it difficult for a spouse or another relative to qualify as a guardian under this management plan.
In subsection 32(1) reference is made to the fact that the person must deal with "honesty and integrity." I just wonder what the difference is. Mind you, I have seen that in many pieces of legislation and I still wonder what the difference is. I do not know whether another person wrote subsection 33(2), the second part of the section. Here we have only honesty. Honesty is mentioned, and that is enough. In section 63 integrity is not mentioned for some reason or other.
As far as section 63 is concerned, if I may refer you to the text, it is my view, and I put it there for your consideration, that in subsection 63(3), paragraphs 5 and 6 should be reversed: "The guardian shall take the person's current wishes into consideration, if they can be ascertained"; and then comes what is now number 5: "If no instructions or wishes can be ascertained, the guardian shall make decisions on the person's behalf that are likely to promote the person's wellbeing." It seems to me as if these two are in the wrong place, upside-down.
In section 24 provision is made that the person appointed as guardian must be a resident of this province. I respectfully submit that you should add, "shall not as a rule be appointed." But there could be exceptions. There could be somebody who lives next door or in the next province who is an expert, or there could be somebody living in Hull and taking care of an incapable person who lives in Ottawa, so "as a rule" would be better.
Another question we have is, should there not be somewhere some provision as to what persons are excluded from being attorneys or statutory guardians or courtappointed guardians of property on account of criminal record, on account of lack of qualifications? Should there not also be a second provision how they are removed if and when such things occur, or if and when such record is discovered? I have the same remarks about the attorneys and guardians for personal care, some provision as to what persons disqualify.
In section 43 and elsewhere there is provision for passing the accounts. I presume that "passing the accounts" is a legal or a chartered accountant term, "passing" meaning approved by the courts, I presume. I just wonder whether some explanation of the words "to pass the account" should be included in the definitions in section 1 to avoid any ambiguity. You pass an exam and so on. It is ambiguous.
Finally, in section 56 it says: "Unless the order expressly provides otherwise, the guardian does not have power" to change so and so "or to give consent on the person's behalf to the adoption of a child." Maybe that is rare or maybe it is not so rare. If the person did not have the sagacity to expressly provide for the guardian being able to consent to the adoption of a child by this person, then that might, may I say, create problems.
While we have expressed some of our concerns as seniors and we are grateful for the opportunity to do so, seniors in this province have been battered and often treated casually and harshly. I say that for everybody. This is our feeling. Seniors have been grossly victimized. Their living depends on a fixed income. We have been emphatically and loudly promised pension indexing and in a year and a half of this government we have seen nothing.
This is not a measure requiring government finances so you would say that the government cannot afford that. It simply involves using some of the large surpluses in the pension funds to provide for the pensioner so he does not go down the drain every year. We are here to emphasize, and I hope we have other opportunities, some of the many problems which are hurting the seniors, or one sixth of the voters of this province. Thank you very much.
Mr Chiarelli: Thank you very much, professor. I think you have made some very good points, particularly with respect to the advocacy provisions. I cannot help but think that before this legislation was finalized you probably could have been a devil's advocate for legislative counsel.
I think that in many ways you raise the same points that Professor Lowy from the University of Toronto raised. He raised some very serious concerns about the advocacy legislation. He said it is good in principle. He said he compliments the government for considering bringing advocacy legislation forward, but that there should be a pilot project for starters, because there are so many questions, it is a new model, we are going into new territory and because it affects people so personally, technically, legally etc, that it would be appropriate to proceed with the advocacy legislation on a pilot project, in effect, an experimental project.
Certainly all the concerns you are raising today, loopholes, the items that are not covered, the inconsistencies etc, would emphasize to me that this legislation is not ready to go forward. Your colleague, Professor Lowy of the University of Toronto, who is very experienced in many of these areas, has said we should proceed with a pilot project. Do you see that as a viable alternative, or alternatively, do you think we should simply go back to the drawing boards and put the other two thirds of the legislation together before we proceed?
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Mr Triantis: That is Dr Lowy, the ex-dean of medicine. I respect his view. His view and my view coincide in the sense that we both have trouble with the bill as it is. Whether you can pass a bill and apply it on a pilot basis I do not know. It is really for you legislators to know whether this can be done. Frankly, I would have it back to the drawing board and go through with it, in view of what I said today and what I guess other people have to say, including Dr Lowy.
Mr Chiarelli: My only comment is that I do not know whether you have the benefit of seeing other briefs or reading Hansard. My understanding is that most of the technically qualified people, most of the people who are working in the field, have serious concerns about the adequacy of the legislation at this particular point in time. I would certainly hope that the government would look at its agenda and go back to the drawing board and try to create some kind of consensus among the people who are interested in this legislation.
I see that you represent a coalition of seniors' groups. Could you perhaps describe very briefly the nature of that coalition and how many people you are properly representing here today?
Mrs Allen-Armiento: We represent three of the Indian bands as well, but we have about 35 groups of seniors, including the teachers. I myself represent the primary care givers in the Italian-speaking group. I have about 250 families. My interest in this is that after spending so much time on it at first I welcomed it. It was certainly due, from the reports I get and the fear of some of the seniors, especially those with Alzheimer's, to have to go into the hospital, or even the fear that some day they may have to go and what is going to happen to them. There is a great deal of fear.
There are a lot of cases which we could not help because you cannot enter a hospital at a certain time, there are just visitors' times to really pin them down. I tried to explain this act. At first they said, "Thank God we have this." I have read it. We have studied so long. I still have not been able to explain it to them. I can just tell you one comment of one of the seniors, who said, "I think we're still back in God's hands." He could not see any benefit of this because it was too complicated and where do we go, especially with the linguistic problem?
Mr Triantis: To your question, I reply that the coalition represents about 35 organizations, some with thousands of members and some with fewer. I have not got a detailed list, but it is a very large number that we represent and we did consult with them also.
Mr Chiarelli: Along with your concerns about the definition of what advocacy or advocacy services are, I wonder if I could ask legislative counsel a question. One of the items you did not raise that I have a question on is in section 1 where it says:
"The purposes of this act are to provide advocacy services to help vulnerable persons," and then in subclause (ii), "bring about structural changes at the political, legal, social, economic and institutional levels."
What does the term "political" mean? Is that intended to be synonymous with "governmental" or is it intended to suggest that advocacy would take place as far down the line as political parties and political campaigns and political matters? Should that not be "governmental level" or in fact does it mean "political"? I am asking that to legislative counsel.
Ms Spinks: I should properly ask legislative counsel to the Ministry of Citizenship perhaps, but I understand the term is really designed to refer to changes in the laws that may be necessary and so forth, not to emphasize political lobbying or things of that nature.
Mr Chiarelli: But what does the section say? To me, the section says that advocates who are coming from a government commission paid for through a government agency are being asked to advocate in the political context. "Political" is a very specific word. It does not say "governmental change," it does not say "change of government policy," it uses the term "political." I would have very serious concerns about the Advocacy Commission getting involved in what is defined as political change and the political level. If you are talking about governmental and interfacing with governments, that is one thing, but if you are talking about political, which is what the section says, that is quite another. I certainly would add that to the list of concerns that were raised here about very imprecise definitions and framework for the whole question of advocates' responsibilities.
Mr Triantis: May I add to that, since we are on the purposes of the act. Under clause 1(c) it says, "To ensure that community development strategies are applied in the provision of advocacy services." For three decades I have taught economic development and planning, and frankly, what this community development strategy is should be spelled out in some way.
Mr J. Wilson: Just to carry on with what Mr Chiarelli was getting at, I suggested last week that because the word "political" is there, if it is not struck, we should ensure that advocates and members of the commission by law not be able to get involved in partisan political campaigns and political parties. I figure that is the only way to safeguard that this does not become some lobbying group for one particular political party.
In the composition of the commission, you did mention perhaps the wording of having people who are either psychiatric survivors or mentally ill at the time serving on the commission. The wording there does seem a little dubious, but I think you will hear from the government that it fully intends the majority of the commissioners to be people who are either survivors or currently in treatment; vulnerable persons anyway. Just looking at the makeup, the majority of the commission would be made up of vulnerable people.
This is the first time in Ontario's history we have established an arm's-length commission that is not only told it is supposed to be political but it is already biased because it is made up in the majority of people it is intended to serve. Does that bother you from a citizens' group point of view? How are you going to get impartial, balanced decisions when it already has a bias? As one group already explained to us, it is already partisan.
Mr Triantis: My point was that here it says people "who have or have had a mental or physical disability...or infirmity." So you can have people on the commission who are mentally disabled according to the way it is phrased.
Mr J. Wilson: That aside, though, do you have any concerns with the weighting of that commission? It is a precedent. Normally when government sets up an arm's-length commission, it tries to put in a balance of perceived interests. This is definitely tilted in favour of the interest group it is serving and there is a conflict-of-interest question.
Mr Triantis: I would be inclined to agree with you. I am not a doctor and I do not know how many people who are mentally disabled become well again, so what do you have, unless you have a majority of physically disabled people. And there the question is, how much do the physically disabled people require an advocate? I do share your concern.
Ms Carter: I just want to raise two points. One is, you raise the question of wishes versus best interests of a person, and I think that is a very crucial point. I could say to you, if you became incapacitated and you had somebody to interpret what you want, would you really want him to be acting in what he thought as your best interests or on your wishes? I think children very commonly get treated and instructed for their best interests, but surely when we become adults we have the right to drink and smoke and do things because we like to do them, even though they may not be terribly good for us. I am just wondering if that is really what you meant.
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Mr Triantis: I frankly believe it should be the best interests, because the wishes I express -- if somebody takes my wishes today, next month I am travelling to Australia on a lecture tour and I feel okay. If I am incapacitated and they say, "This person really liked to travel," no, the best interests would be different from my wishes, because they do not know my wishes when I am incapacitated and therefore my best interests should really be the important point.
Ms Carter: Obviously if you are incapacitated you are probably not going off on a long journey because you want to, but I think there are much smaller things in life where you have your preferences and your choices. I think the object of an advocate is to listen to the person, rather than to turn around and say, "This is what you ought to be wanting." I think that is a decision that should be clear.
If you are incapacitated, of course you also need somebody to protect your rights and your point of view against people who maybe claim to be speaking for you but actually are not, for example, if relatives were trying to get hold of your estate and saying, "Oh, well, he is incapacitated; he can't do that," and you do not feel you are that incompetent. You need somebody to defend you, and that would be the advocate's role.
Mr Triantis: I see your point, which is very rational. My question is, how do you ascertain the wishes? You only know the wishes of yesterday; you do not know the wishes of today or what would be the wishes today. Therefore, somewhere along the way there should be some balance struck between wishes and best interests.
Ms Carter: I think a lot of the vulnerable people were thinking of people not so far incapacitated that they cannot still express wishes. Certainly you represent the senior citizens and I think that would be the case with a lot of older people, that they still know what they want but they do not have the ability to make those wishes stick, as it were, so they need an advocate.
My other point is, what qualifications do you think an advocate should have?
Mr Triantis: God almighty, the task is being given in the other two bills. As I said before, he should be Solomon himself. I would not take on that job. Not that I am so wise, but all I am saying is that I would find it overly difficult. I have a legal background and an economics background, but there is a lot more I would have to have.
Mrs Allen-Armiento: Especially as they would have to be culturally sensitive to the different culture of that person. That adds more, which is the makeup of our society.
Mr Triantis: That is something to be worked out.
Mr Winninger: Thank you, Professor Triantis. I do not know if you were saying this entirely tongue in cheek, that the advocate had to fulfil the role of Solomon here, be the person for all seasons, the psychologist, psychiatrist, theologian, what have you. Is it not important that the advocate know where the resources are to be able to direct the vulnerable adult in the right direction, be it to a psychiatrist, doctor, theologian or whatever? They do not have to embody those qualities themselves necessarily, but they have to know where to find the assistance and they assist in finding assistance. I just wondered if you were aware that the role of the advocate is more modest perhaps than you envisage.
Mr Triantis: Then we should give them a 100 course in psychiatry, psychology, theology, as you said, and so on, and then they will know how to deal with these other specialties.
Mr Winninger: Just one supplementary question dealing with Bill 108: Do you see a need for powers of attorney for personal care and in some cases guardianship orders?
Mr Triantis: Do I see a need?
Mr Winninger: Do you see a basic need for that?
Mr Triantis: Oh, yes. Yes, I do.
Mr Malkowski: Just briefly, do you have any specific recommendations or suggestions in terms of qualifications of the advocates related to their role and responsibilities?
Mr Triantis: The question is related to the question I was asked by Mr Winninger. I do not have an answer offhand. All I can say is that in society you will find that preference will be given to lawyers and accountants. Whether the lawyer or the accountant is the right person to be an advocate, rather than the social worker or the psychologist, I do not know. This is something I cannot give an answer to at this point. If I were part of a committee thinking out this problem, maybe I should and I could.
Mr Malkowski: Then you would support the Advocacy Act in terms of helping seniors and to protect seniors from abusive situations?
Mr Triantis: I support an advocacy act and I support the notion of advocacy, just as I support the notion of motherhood, but there is a long distance between an advocacy act which is properly done, which is complete, which does not have the defects or the incompleteness we see, an advocacy act of that kind, and the Advocacy Act we have in front of us, Bill 74. I do support an advocacy act, I do support the notion of an advocacy, yes, but not the way this bill is structured.
The Chair: On behalf of the committee I would like to thank you for taking the time out this morning and coming to give your presentation.
I would like to announce there will be a subcommittee meeting at 1:25 this afternoon. This committee stands recessed until 1:30.
The committee recessed at 1217.
AFTERNOON SITTING
The committee resumed at 1334.
SUBCOMMITTEE REPORT
The Vice-Chair: First off, I would like to let you know that the subcommittee met at 1:25. I have a report: "Assuming that the House is not sitting, the subcommittee recommends that the Chair ask the House leaders and whips to allow this committee to sit for the purpose of further public hearings during the week of March 23." Any discussion? All those in favour?
Mr Fletcher: Can we have 10 minutes?
The Vice-Chair: Are you asking for a 10-minute recess? We are recessed for 10 minutes.
The committee recessed at 1335.
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The Vice-Chair: All those in favour of the subcommittee report, please show. All those opposed? The subcommittee report is defeated.
The first presenter I would like to call this afternoon is the Advocacy Resource Centre for the Handicapped.
Mr J. Wilson: Mr Chair, what is the sense of having a subcommittee meeting when the three parties agreed on something and now they do not agree?
The Vice-Chair: Each member, Mr Wilson, has the right to vote as he wants when in committee.
Mr J. Wilson: Well, you guys should know what you are doing before we have a subcommittee meeting.
Mr Chiarelli: I have a motion.
The Vice-Chair: Mr Chiarelli moves that the committee not report this legislation to the Legislature until January 1, 1993, or later.
Mr Chiarelli: I would like to comment. I may be commenting on this at some length, so I am going to give you some fair warning on that particular point.
The Vice-Chair: Can I ask that the witness be excused then, so that she does not have to sit right there?
Mr Chiarelli: That is fine.
The Vice-Chair: Okay, you can be excused for a few moments. Mr Chiarelli, would you mind delaying the discussion until the end of the last presenter this afternoon?
Mr Chiarelli: I do mind; I would prefer to go ahead with my motion.
The Vice-Chair: By all means.
Mr Chiarelli: Thank you. I am concerned about the progress of this legislation. I am concerned about how responsibly or otherwise the government members are conducting themselves with respect to these hearings. As I mentioned on another motion last week, I believe this legislation is the type towards which which any government must work to develop a very broad consensus. We are talking about legislation that impacts very directly and personally on almost every citizen of this province.
Each one of our fellow citizens will be dealing with this legislation, through older parents, through vulnerable people in their family or close to them. We are talking about legal documents, we are talking about legal advice that will be given to mature adults in every legal office in the province of Ontario. Yet we have seen here, since these hearings have commenced, a very broad consensus that we ought not to be dealing with this legislation in its current form, or at least not within the present legislative straitjacket.
We have live legislation. We have a bill that has gone through first and second reading. As I understand it, we are going to be looking at clause-by-clause and amendments to this legislation. My assessment, my looking at the situation through the words of the presenters who have come here has indicated that this legislation needs to be redesigned. There is a consensus, in principle, that the Mental Health Act advocacy legislation has to be relegislated and modernized in a very significant way, but there also is the consensus that the present legislation is not workable. Each individual bill has serious flaws in it and the workings between these bills have serious flaws in them.
That being the case, I had real trouble understanding when last week, when we had come before us a witness such as Dan Ferguson, who is very experienced in this whole area, we did not have agreement from the government side to permit an extra 10 minutes of questioning because he had used his full time. Yet today we can go to 12:20 or 12:15, when last week I asked only that we go to 12:10 or 12:08, in order to ask that very important witness some questions.
Today we had a subcommittee meeting in which we had a very simple discussion; that is, we had a number of people who had requested to come before this committee and make presentations and we had an all-party agreement at exactly 1:25 to present to this committee that we have an extra week's sitting, an extra week which became available because the government has indicated that it intends to convene the Legislature later. The subcommittee report was presented and a request was made to adjourn for 10 minutes, so the government side could go out and discuss the issue.
Mr Chairman, to be very frank, I wanted to use that opportunity to go out and make a phone call to my office to see what was going on in terms of messages. As I was walking out to the phone, I overheard the government caucus talking about CBC programs, CBC interviews etc, and the main concern obviously was the fact that the media were dealing with this legislation in some fashion, which I find absolutely, totally offensive.
The Vice-Chair: Is that a point of order, Mr Fletcher?
Mr Fletcher: Yes, Mr Chair. What was heard was out of context of the whole conversation, and Mr Chiarelli is using it to make it sound as if there was some devious plot going on.
The Vice-Chair: That is not a point of order, Mr Fletcher. Mr Chiarelli, please.
Mr Chiarelli: I am not suggesting there is any devious plot whatsoever. I think what the government is doing is quite clear. It intends to proceed with this specific legislation when there is a consensus among most of the people who have come forward so far that they do not want this legislation to go ahead in its present form. I repeat, the substance of my motion is that I do not think the people of Ontario and I do not think a lot of the special interest groups and the citizens who are coming here as individuals are ready for this legislation to be implemented. On the other hand, I see the government as being on a course where it intends to complete the three weeks of hearings, move to clause-by-clause and bring this legislation in for third reading, if and when the Legislature is ever reconvened.
I believe this is not the will and intention of the majority of people who want to deal with this legislation. I think the majority of people who want to deal with this legislation want to try to come up with a consensus. They realize that we are dealing with very substantive legislation that is going to impact on every single person in this province. Rushing it through in the manner the government and this committee are rushing it through is irresponsible and not in keeping with the submissions that have been presented to this committee to date.
I can only repeat what somebody like Dr Lowy indicated to the committee last week that, in principle, this legislation is good; however, we should be redesigning it so that it is a pilot project. He said that we are talking about health care issues in a very highly technical and legal area. We are also talking about treatment of vulnerable individuals and how they are going to be treated. We are talking as much about a medical problem as we are about a legal and social problem. Dr Lowy, from his perspective at the University of Toronto -- I believe former head of the faculty -- has indicated that one simply does not proceed with widespread medical treatment and medical procedures without significant trial-and-error experimentation in a very scientific, cautious and conservative manner. He expressed concern that we in fact are passing legislation which is a new model without any experience in the field.
I believe strongly that the legislation needs to be worked and massaged and that individual amendments at the clause-by-clause stage will be totally, absolutely inappropriate for this type of legislation. We are going to end up with a network of confusion on the part of lawyers, social workers, medical practitioners and families of vulnerable people in this province.
It is a matter that will require a total communication package throughout the province in as concentrated and as widespread a fashion as possible from the point of view of the legal profession having to create seminars and having to put together a very massive program of educating the profession. The legal profession will have to be educated in a very major way. Medical practitioners of every type will have to be educated in a very major way. People working in the field, advocates, will have to be educated in a very major way.
Yet we are rushing this legislation through. We have had the most pre-eminent experts who are available in the province of Ontario to date come before this committee and say it is premature to deal with the legislation in the way we are dealing with it now. I find it is highly irresponsible.
I believe if this legislation and this matter were not to be reported to the House until some time after January 1, 1993, cooler heads would prevail. The opportunity would exist for these special interest groups, these professions, to talk to people in the government to try to persuade them. I really believe that the government members of this committee are having trouble assessing the impact and the importance of this legislation and that they are hell-bent for third reading and getting it through as quickly as possible.
I would prefer to see this matter dealt with in as non-partisan a way as possible. We are not talking about Sunday shopping. We are not talking about rent control. We are talking about the very substance of the lives of thousands and thousands of people of this province, vulnerable people, senior citizens. I cannot conceive of a government that would want to proceed without a broad consensus on the particulars of the legislation.
There was an indication last week that they would not permit 10 minutes to ask questions of an individual. There was agreement at 1:25 today that we are going to open it up for another week of hearings so people who have requested to come in to make submissions can come in. We have an ad hoc meeting out in the hall where the government side goes out and says: "We've changed our mind. We're not going to have any more hearings on this issue."
How appalling, how unbelievable for a government that is supposed to be open, that wants to listen and that wants to consult -- and sits there and smiles because I am saying what I am saying. Get serious. Do what you say you are going to do. If you are going to consult, and you want to redo how we do business in the province and how people conduct their lives in a serious way, then open the doors and open your mind and do things the right way.
Mr Fletcher: You've already wasted people's time.
Mr Chiarelli: I have not wasted any time, Mr Fletcher.
Mr Fletcher: What did you do? Five years. Tell us what you did.
Mr Chiarelli: That is right, and I have to apologize to the people who are here, because the people who are coming in from day to day, a lot of them, do not understand the context of what a lot of the submissions are in this process, what people are saying from day to day in their briefs and who is saying it.
A lot of people have said basically, and I agree with it, that the problems under the Mental Health Act and the problems with advocacy in this province have to be addressed. There are serious problems. But we are not doing it the right way. We are not doing it in an open way. We are restricting the debate. We are restricting the consultation. I believe I have said what you want to do --
Mr Morrow: On a point of order, Mr Chair: I do believe that we are hearing more deputants than any other committee this session.
The Chair: You do not have a point of order, Mr Morrow.
Mr Chiarelli: I understand that you have three weeks of hearings, that you are hearing a lot of deputants. But I also think it is imperative and the principle under which I am making my motion is to respond to what those many deputants have said to date, and to respond to the fact that today you said even though you have time in subcommittee you are not going to open it up for additional hearings to people who are calling, including the Advocates' Society, Duncan P. Read, executive director, who wants to come in and make a submission. We are saying to the Advocates' Society, "No, we are not providing additional time for you to come in." We are saying to other groups, "No, we are not providing time for you to come in."
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We are not talking about an imperative piece of legislation that must be legislated by June 1 or June 30. We are talking about legislation that will be very difficult to amend after the fact. We are talking about legislation that will impact upon almost every profession -- other than the accounting and engineering professions -- all the health professions and the legal profession in a very, very significant way.
I am going to conclude my remarks very quickly, because I am concerned that we have people who are waiting to make submissions. I just want to say that the attitude of the members of this committee, I hope, does not reflect the attitude of the Premier. I think if the Premier were sitting here seeing the deliberations of this committee and how they are dealing with the issues and how they are closing the door to suggestions that are made honestly and openly by opposition members and members of the public, he would be very disappointed in his members of this committee who are elected to serve the people of Ontario. I will conclude my remarks with that.
The Chair: Thank you, Mr Chiarelli. Further debate on the motion, Mr Wilson.
Mr J. Wilson: Perhaps the parliamentary assistant could answer this. Stemming from the motion, I would like to know why the government changed its mind so abruptly and will not allow an extra one week of committee hearings for the one dozen groups, I think, that have asked to appear before this committee. What would the reasoning be for that? If you have not changed your mind, which Mr Fletcher and Mr Morrow who sat in the meeting are trying to tell me is untrue, then what would the reasoning be for not allowing an extra week of committee hearings when so many people want an opportunity to speak to this committee?
Mr Malkowski: I would like to respond very directly to Mr Chiarelli and to Mr Wilson's comments. Up till now, historically, people have brought up the issue of advocacy. The Tory government introduced the psychiatric patient advocate office and that system was established. The Liberal government set up the O'Sullivan report that looked at advocacy. There was the Fram report that made strong recommendations in terms of setting up an advocacy commission. So we do have those recommendations. We have heard the three parties agreeing on the concept of advocacy in the House. That is already on record. We have already heard from different groups and presenters, adult protective service workers, their concerned friends, psychiatric survivors, the different groups that made presentations. They were all very clear that they are in support of advocacy.
Mr Chiarelli, I would like to make a point very directly with you. You have missed several of those presentations, Thursday afternoon and Friday.
The Chair: Through the Chair, please.
Mr Malkowski: Sorry, Mr Chair. Several presentations have been missed.
The Chair: That is out of order, Mr Malkowski.
Mr Chiarelli: I do not mind if he talks directly to me.
Mr Malkowski: You are right. We do not want to waste time, and we do not want to waste the people's time who have come here. I think it is time to do something in terms of setting up the Advocacy Commission. We have been already working on this for 20 years so, come on, we need to go ahead with it. I think we need to respond by setting up the Advocacy Commission, to go ahead and do that.
Now I would like to focus on the presenters because they are ready and I do not want to waste their time. I think we need to move on.
Mr J. Wilson: I did not really get an answer to my question, because we are not talking about delaying; although the motion, and I have not said whether I am in favour of it or not, talks about delaying introduction of the committee's report. My question was, why can we not have an extra week, given that we know the House is not coming back on March 23? It will be coming back mid-April is my guess. We certainly have the time. It would not delay introduction and we have people who have concerns they want to bring forward.
The Chair: The committee has voted against extending for one extra week.
Mr J. Wilson: I think the people of Ontario are entitled to know the reason.
The Chair: The committee has decided not to; that is all I can say.
Motion negatived.
ADVOCACY RESOURCE CENTRE FOR THE HANDICAPPED
The Chair: I would like to call forward our next presenter, from the Advocacy Resource Centre for the Handicapped. Good afternoon. Would you please identify yourself for the record and then proceed.
Ms McKague: My name is Carla McKague. I am the senior litigation lawyer for the Advocacy Resource Centre for the Handicapped, which some of you will know as ARCH. In view of the preceding motion, I want to begin a little differently than I had intended to begin today.
I want to begin by pointing out two facts. The first is that debate, discussion, consultation and committee meetings on the issues addressed in this legislation have already gone on in this province for over 12 years, and 12 years is enough.
The second thing I want to point out: Mr Chiarelli has been addressing the issue of what the majority of people in Ontario want. I want to give you some idea of the size of the constituency I am here to speak on behalf of: 20% of people in Ontario have been or will be inmates of a psychiatric institution, one in five Ontarians; 3% of Ontarians have developed mental disabilities. We are already up to almost a quarter of this province and I have not even yet got to physical disabilities or to the elderly. We are talking about a sizeable number of people. We are talking about close to one half of this province that will be directly affected by this legislation, affected not because they are providing services under it, but because they are receiving services under it. That is a voice, I would submit to you, that deserves to be listened to.
Let me go back to where I intended to start. Some of you know who we are. Some of you are familiar with ARCH; some of you are not. What we are is a community legal clinic. We are funded primarily by the Ontario legal aid plan. Our concerns are with people who have disabilities, physical or mental. We are governed by a board composed of representatives of 40 member organizations. The majority of our board are themselves people with disabilities. We very rarely speak with an independent voice. We take generally the traditional role of lawyers, which is to represent our clients and to speak on behalf of our clients.
There is, however, one area in which our board has said we have our own voice, and that is the area of advocacy. We have been instructed by our board for a long time to speak out as strongly as we can and as powerfully as we can for the introduction of a system of lay advocacy. We are therefore here primarily to speak to Bill 74. We will be addressing some comments to Bills 108, 109 and 110. We are not going to address Bills 7 and 8 before you because we feel that the concerns they deal with, which are very real concerns, are adequately dealt with by the other legislation.
We have had 12 years, since our founding in 1980, of experience with the very, very serious and pressing concerns of our community. One of the things that has been apparent to us throughout those 12 years is the desperate need for our clients to have people who are not necessarily lawyers assist them in making their problems and concerns known.
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It is not a matter of identifying the problems. I can assure you we know what the problems are. The central ones -- I have given you a written copy of this, so I will summarize -- are unemployment, poverty, vulnerability to abuse, lack of physical access, lack of access to information, lack of access to adequate services, and daily encounters with discrimination, stereotyping and appalling treatment by other people.
Some of these problems have legal solutions and some do not. Many need the help of a lay advocate, someone who can come into the picture, not to define the problem -- we have done that -- but to assist the person in being heard. The reality is that people with a disability are often unable to make their unassisted voices heard. They may have difficulty speaking or hearing. They may be in a situation of total dependence on an oppressor or an exploiter. They may simply lack credibility: No one is going to listen to them, because they are crazy or they are dumb.
Ideally, this would be a society in which anyone could speak out and be heard and be respected, but that is not so. The fact is that if you are looking, for instance, at the situation of a young woman with a developmental disability who is routinely and repeatedly sexually assaulted by a family member, she cannot solve that problem on her own. The person with a physical handicap such as cerebral palsy, who is taunted by others and abused, does not know where to go for help. The elderly woman in the nursing home who has inedible food and inadequate personal care needs assistance. The problem is very clear.
We want to speak in the strongest possible terms about the need for this proposed advocacy system. Many people in this province -- as I have suggested, perhaps close to half the people in this province -- at one time or another need skilled, caring allies who can not only assist them but can also help them learn how to make their voice heard unassisted.
We do have some concerns with details in Bill 74, but I emphasize very strongly that these are details and only details. We are talking about minor cosmetic surgery and not about radical restructuring, and we urge this committee in the Legislature to pass and proclaim this legislation with all possible speed. I am not even going to address the details for the most part.
You will be hearing later this week from the Ontario Advocacy Coalition, a group of which we are a member, and we support and adopt virtually all of its recommendations. There is one that I have mentioned in the written material you have about which we do not take a position for or against. That is their recommendation that there be an amendment to the act to allow an advocate to break confidentiality in order to report the risk of a vulnerable person's doing harm to himself or herself. This is a very controversial area within our community and we simply take no position.
As far as Bills 108, 109 and 110 are concerned, again, at this point I am not speaking with ARCH'S voice. I am speaking here reflecting a consensus among our member groups and our constituents. We are, however, at first hand very painfully aware of the problems that exist in Ontario because of gaps in our law around decision-making for people judged incompetent to make decisions personally. We get calls virtually daily arising from these gaps.
What we have here, and I want to make this very clear to you, is a situation in which, with the sole exception of treatment in psychiatric facilities, virtually every decision made in respect of an incompetent person is legally invalid. Virtually all health care provided to incompetent people is illegal and legally constitutes an assault. There is no legal protection for the subject of the decisions or for the decision-makers. We go through enormous frustrations dealing with this total hiatus, this total chasm in the legislation.
As one example, we regularly see intrusive, unpleasant behaviour modification applied to developmentally disabled adults, either in provincial facilities or in group homes, and we know it is illegal. We know that you cannot legally do that to people. But if we go in and say it is illegal, our foundation for saying that is that, "Everything you are doing for and to these people is illegal." We cannot bring down the bad without bringing down the good along with it and taking away the foundation for this whole system of supports and services to people with developmental disabilities.
The scheme that is proposed in this legislation would resolve that problem. Again, we have problems with some of the details, which I will address briefly, but the principles are sound -- provided, always, that we remember the need for an advocacy system to go with it so we do not repeat the experience elsewhere of sweeping too many people under state paternalism.
Again, we are for the most part going to adopt the recommendations you will be hearing on Thursday from the Ontario Advocacy Coalition. However, there are two or three that I do want to specifically address.
The first is one on which we are not adopting the coalition's submission, nor are we saying you should not adopt it. It is one on which our community is so divided that there is not a consensus from which we can speak. That is the issue of whether partial guardianship ought to be included in the bill. There are members of our community who feel very strongly on both sides and, consequently, we feel that we should take no position on that submission.
On the other things I am going to mention, we support the coalition and we consider these of particular importance.
We know, and I believe Mr Chiarelli mentioned this earlier, that some groups have expressed concern to you that Bill 109 is modelled on the consent provisions of the current Mental Health Act. You have been told that the current Mental Health Act does not work and that it makes it hard to provide treatment to people in need of it. We must differ with those submissions to you. The problems that have been reported to you are not problems of the Mental Health Act. They are problems that arise from a profound and wilful misunderstanding of that act both by family organizations and mental health care professionals.
I have a friend who chairs one of this province's review board panels who talks quite often about the fact that this province has two mental health acts. There is the real one and there is the one that is discussed in the Toronto Sun. It is the one that is discussed in the Toronto Sun that causes the problems. It is the one that is discussed in the Toronto Sun that says you cannot commit people unless they are going to kill themselves in the next five minutes and that you cannot treat incompetent people. That is not what the actual legislation says. The actual legislation makes it perfectly possible to provide hospitalization and treatment to people who are at risk. You need to know that and not listen to the Toronto Sun version of the Mental Health Act.
However, the Mental Health Act -- here is a real problem -- is daily ignored and violated by the psychiatrists of this province. The enforcement provisions are weak. They do not work. It is virtually impossible to ensure that the rights protections it contains are provided, and that can be documented from many sources, as I have indicated in your written materials.
The major concern of our constituents about Bill 109 is that it has even fewer rights protections. It has a fine for stopping an advocate from seeing somebody. It has a fine for lying about somebody's previous wishes. That is it. The concerns are that, as good as this act looks on paper in principle, in fact it is going to be ignored, violated and disregarded in exactly the same way the current Mental Health Act is. We want you to consider seriously including much stronger enforcement provisions in this legislation and, at the very least -- and it is least -- adding a provision similar to that in the current Mental Health Act which makes it an offence punishable by a substantial fine to violate any provision of the legislation.
One of the main problems with the current Mental Health Act, which we again expect to see reflected with the new legislation -- failure in practice, again not in the legislation -- is around determination of competency to consent to treatment and, for that matter, other competencies. That is, of course, the very heart of this legislation. That is what this legislation is all about: making decisions on behalf of incompetent people. But first we have to know who they are.
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The current pattern in the mental health system, and it is sometimes even stated as hospital policy, is to consider everybody competent as long as they are saying "yes" and to raise the issue of incompetency only when somebody says "no." That is not sufficient. We do not, as a society, allow doctors free rein to treat our children just because our children are incompetent. We have parents who say: "Wait a minute. I hear what the doctor says. There are other factors to consider. I weigh it and I make the decision that is best, overall, for my child."
We owe our incompetent adults the same dignity. That means not only that we must address the issue of competency and competency determination, but that when there is an issue, it must be carried out by properly qualified and trained people. The decisions must be made by people who know what they are doing. This legislation provides for people called "assessors" who will be trained, who will be certified, and we are very much in favour of that. It then totally dilutes that principle by, almost without exception throughout the act, saying that these determinations must be made by "an assessor or physician." I am sorry, but physicians have up to now done a very bad job of this. If you have a physician with the appropriate training and qualification, that is fine. A physician who is not trained as an assessor has no business being an expert under this act, and I would ask you to remove that word "physician" wherever it appears in that context.
I have two short final points. These are about areas of the legislation which make special provision for psychiatric patients. The first is in Bill 108, section 15. It provides that when a psychiatric patient is found financially incompetent under the Mental Health Act, the public guardian and trustee will automatically become statutory guardian of his property. No one except a psychiatric patient may be placed in that position. Anyone else who is found incompetent may refuse the statutory guardianship of the public guardian and trustee and may go to court and fight it out. There is provision in the legislation for emergency intervention, for temporary guardianships, and we believe that to be fully as adequate for psychiatric patients as it is for anybody else. We find totally unacceptable the stereotyping of psychiatric patients as people whose property rights may be removed in a summary and demeaning way.
Second, both bills have sections providing that a court may award to a guardian of the person the right to admit someone to a psychiatric hospital against his will. Now, the legislation has provided some extra protection for psychiatric patients here by saying that this power must be specifically awarded by the court, but we see no rationale whatsoever for conferring it.
The Mental Health Act already contains, and will continue to contain, provisions for the involuntary admission of people who are likely to suffer serious harm or are likely to cause it to others. This provision, therefore, would only be used on people who are not likely to suffer serious harm or cause it to others and who therefore, in our view, should not be deprived of their liberty. We have even graver concerns that if such a power is granted, not only might it be exercised, but it might be used, frankly, as a club to compel behaviour in the community that the person does not wish to engage in, on the threat that he or she would be admitted to a psychiatric hospital if they did not do as they were told. We think that that is likely to result in people in the community having fewer liberties than those in the institutions, which would be a somewhat ironic result.
I am going to stop there. I am going to ask you to consider carefully the presentation later this week of the Ontario Advocacy Coalition and also, in particular, the presentations of all those individuals and organizations of individuals who are at risk of being found incompetent. There are many areas of controversy to be resolved, and I put it to you that the most important voices for you to listen to are the voices of the people who will be most directly affected by this legislation.
I am available for questions.
The Chair: Thank you. Each caucus has about three minutes. Mr Chiarelli.
Mr Chiarelli: Thank you for your submission. I appreciate your comments. I appreciate your experience and your perspective. I appreciate the fact that you are here, something that somebody else will not have the right to do; namely, 12 individuals from groups including Seniors Advisory Council for York Region, Metro Toronto Homes for the Aged, Ottawa Injury Recovery Clinic, Conseil national de bioéthique, Ontario Fibrositis Association, Informal Network of Parents, Health Care Aide Association of Ontario, Advocates' Society etc. They too have a perspective which I would like to listen to, because I would like to think I am looking at this process objectively.
Before the lunch break we had a group, the Ontario Coalition of Senior Citizens Organizations, represented by Professor Stephen Triantis, who went through the advocacy legislation. He thinks it is seriously flawed, whereas you think it could have some minor tuneup. Looking at it from my perspective objectively, I think there are some very serious concerns. Therefore, at the very least we should open the door to have additional people come in to talk to us, to assist me as a committee member, as an MPP trying to serve the people of Ontario, to make up my mind. I know that I have not, as Mr Malkowski said, heard all the submissions, but I have heard a significant number of them and I have read a number of them, including the College of Physicians and Surgeons of Ontario and Dr Lowy from the University of Toronto, who says that we should be looking at a pilot project rather than coming holus-bolus into the legislation.
I just want to say that I appreciate your perspective. I appreciate what you are saying. I appreciate your advocacy. I think the time is right for it. Whether it is here two months from now or 12 months from now I do not think is significant in the context of getting it right and having at least a broad support on the part of the public so they know what they are getting into and they can be ready for it.
I am just going to ask you very quickly if you think that the advocacy legislation will impact in a very major way on senior citizens.
Ms McKague: Of course it will. I think senior citizens will be one of the groups most affected. That is not our area of specialty, but I am certainly aware from our contacts with organizations working with the elderly of the enormous number of people, for instance, in nursing homes, often in very substandard and unfortunate conditions.
I think we have to remember here that the Advocacy Act is not just to provide a tool for Bills 108 and 109. The Advocacy Act is a much broader scope than that. It is going to deal with the concerns of Bills 108 and 109, but it is also going to provide protection against abuse, against exploitation. It is going to provide voices that are badly needed for many people -- elderly, disabled -- who are in situations of abuse and exploitation. That is needed. That is not just needed today. That was needed yesterday and last week and 10 years ago.
Mr Chiarelli: But I have a problem as a member of this committee, trying to act responsibly and trying to come up with a reasonable decision, when I see the Ontario Coalition of Senior Citizens Organizations, representing thousands and thousands -- I think they indicated they are an umbrella group representing 36 groups -- and also last week a counsellor for London seniors and a number of other groups who are very concerned about this legislation, say, "Go back to the drawing board with it." So looking at it from my perspective, as people come through that chair, you have to understand it is very difficult for us to be so sure about it, looking at it as a member of the committee. So I hope you appreciate --
Ms McKague: I understand that. I have the advantage of having worked with it for 12 years.
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Mr J. Wilson: Thank you, ma'am, for your experience and bringing it before the committee today. It does worry me, though, and it does go back to our desire to see some more public input on this, because we do have groups that seem to know more about this legislation than we know or than we have been told today. For instance, I am still not sure what an advocate is, what the definition is, and it was brought up in this morning's hearings, a couple of groups saying, "What exactly is an advocate?" People seem to have different views on what exactly an advocate is going to do. There are some parameters, some things an advocate must take into consideration, but there is no real definition of what an advocate is with any meat in it.
You mention in your brief on page 8 "assessors," and you say these would be people who have been trained and certified as having these skills, and we support that. Well, how do you know that? There is nothing in the bill that tells me -- you say the assessor should not be a physician, so who --
Ms McKague: No, no. I did not say that. I said that being a physician is not enough --
Mr J. Wilson: You said it is watered down.
Ms McKague: A physician with the appropriate training is quite acceptable. I have no problem. But assessment of competency is not a medical task, and being a physician is simply not enough to accomplish that task.
Mr J. Wilson: In your opinion, who are these assessors going to be? Specially trained physicians, perhaps?
Ms McKague: They might be physicians. They might well be other people. They might be social workers. They might be psychologists. They might even be lawyers.
Mr J. Wilson: Who certifies them?
Ms McKague: This is something that has been discussed as progress of the legislation went on. There are certainly some ideas. I do not believe that I should speak for civil servants with whom I have talked about this. I can tell you that the ideas that have been put to me are ideas of which I am very much in favour. The model of competency determination is one I like very much, and I would recommend to you as a source on that, although it is fairly heavy going, the Weisstub commission report, the inquiry into mental competency --
Mr J. Wilson: Yes, I have looked at it.
Ms McKague: -- which talks for 500 pages -- 512 pages I think -- about what constitutes competency. The fact that it took 512 pages to talk about that is some indication of the complexity of the task.
Mr J. Wilson: In light of that, it bothers me, not just in this area but in legislation, period, that we leave so much up to the regulations to be defined outside of the legislative body. As a politician, if this system goes wrong, I am going to take the hit for it, yet I have nothing to say about regulations. They always add the flesh to the bones on this legislation.
Would you prefer to see a definition or some fleshing out of what an assessor is, for example, in the act itself?
Ms McKague: I have some ambivalence, I must say, because on the one hand, of course, it is better to have things enshrined in statute where they cannot be changed at ministerial whim. One never knows who the next minister is going to be.
Mr J. Wilson: I have a good idea.
Interjections.
Mr J. Wilson: We will not go down that lane.
Ms McKague: On the other hand, as a hypothesis, let us suppose that what the government is saying is, "We really think Dr Jones is an expert in this area, and our intention is to get Dr Jones to train assessors." You cannot exactly enshrine Dr Jones in legislation. It is a problem. It is a problem that I do not think is of significant weight to delay this legislation.
Mr J. Wilson: Okay. Thank you.
Mr Fletcher: Thank you for your presentation. A funny thing about being with this government is that I can look at our benches and know that at least 50%, 60% or 70% of our members were at one time advocates for some group at some time. I know that --
Interjection.
Mr Fletcher: Yes, even ministers. I know Marion Boyd was an advocate for single parents and also battered women. That is why I find it strange that Mr Wilson does not know much about advocacy and that more people would know more about that.
Mr J. Wilson: I do it every day of my life.
Mr Fletcher: As far as the legislation is concerned, if you feel that --
Mr J. Wilson: Mr Chairman, that comment is uncalled-for in the light of my comments.
Mr Fletcher: Do I still have the floor?
The Chair: Yes, you do.
Mr Fletcher: Do you feel there should be more in the legislation which goes towards that family support, that the family should be more involved in the advocacy or anything else?
Interjections.
The Chair: With fairness to the presenters.
Ms McKague: You have hit me on a point that is a very difficult one for me to answer, Mr Fletcher. Of course family support is highly to be praised and encouraged, and I think this legislation does that in many ways. It provides, for instance, that barring some choice to the contrary it is family members who will make decisions on your behalf. I am also very painfully aware of situations in which there is a great gulf between individuals and their families, and sometimes the fault is on one side and sometimes it is on the other. There are situations in which the family are the last people who should be involved in decision-making. I think this legislation strikes a fair balance.
Mr Fletcher: Thank you very much.
Mr Wessenger: Thank you very much for your presentation. What I was interested in is your statement that the present Mental Health Act is ignored. I assume, from the position you are looking at it, you mean it is ignored with respect to the rights of individuals.
Ms McKague: Absolutely.
Mr Wessenger: I would like you to elaborate a little more on the basis of that perspective, but is it also often ignored with respect to the question of admission, in the sense that you indicated that people should be admitted where there is a serious risk of harm? Is there also a problem on the other side, of psychiatrists not admitting people when there is a serious risk of harm?
Ms McKague: Absolutely. I might, perhaps, refer you back to a case I did about two or three years ago. It was an inquest into the death of a young woman who was 21 years old who died of taking 300 Gravol tablets. The reason she took those tablets was that she had discovered that the only way to get into hospital was to overdose. They would not accept her in any other circumstances. At that inquest one of the expert witnesses called was the medical director of one of our provincial facilities. I asked him, in cross-examination, what it took to get admitted voluntarily to his hospital. He said: "Frankly, we won't admit you voluntarily unless you make the commitment criteria. We don't have room."
There are two factors, in my experience, which play into whether people do or do not get into hospital, and neither of them is what the legislation says. One of them is available beds and the other is the availability of community resources. If you, for instance, look at the commitment criteria in Saskatchewan as opposed to ours, Saskatchewan has a "best interests" criterion. You can be admitted to hospital against your will in Saskatchewan if someone feels you will benefit from treatment. Our criteria and Nova Scotia's criteria are very much "serious risk to self or others."
One would expect a higher proportion of commitments in Saskatchewan. In fact, in Saskatchewan some 5% of admissions are involuntary. In Ontario it is some 21% and in Nova Scotia it is over 30%. It has nothing to do with what our act says. It is, "Do we have room?"
The Chair: Thank you, Mr Wessenger.
Mr Winninger: Could I just follow up on that? Basically, from those statistics, that would indicate that many people are admitted who ought not to be and others are not admitted who should be.
Ms McKague: I would say only semi-facetiously that perhaps we could solve the problems of our system if we let in everyone who wanted in and let out everybody who wanted out.
The Chair: Thank you, Mr Wessenger. Ms McKague, on behalf of the committee I would like to thank you for taking the time out this afternoon and coming and giving us your presentation.
Ms McKague: Thank you for your attention.
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ONTARIO NETWORK FOR THE PREVENTION OF ELDER ABUSE
The Chair: I would like to call forward our next presenters, from the Ontario Network for the Prevention of Elder Abuse. Good afternoon.
Mr Butler: Good afternoon. My name is Doug Butler and I am with the Ontario Network for the Prevention of Elder Abuse. I would like to present the people who will be presenting with me: Mrs Doris Baker, also with the board, and Mrs Elizabeth Podnieks, who is a founding member of the network.
Before I continue I have some small housekeeping to do in that I want the committee to pay more than normal attention to my words, not because of the content of those words, but I have a physical disability which causes my voice to sigh. Just in case some of you are thinking I may have slipped out at lunch time and hit the bottle, I wanted to put that to rest right away. Going through parts of this legislation sometimes made me want to head in that direction; I cannot deny that for a minute.
In terms of defining elder abuse, I think its name says it all. It is primarily physical, financial, psychological and in a lot of cases just plain neglect. Our group was started over the last year, and the object was to get rid of elder abuse if we could do it. Our goals are listed on page 1 of the brief we presented to you and they are very simple: to educate both professionals and laypersons in elder abuse and what it is; to promote the sharing of information; to develop educational programs, and we have started that process right now by targeting in on the younger people to give them some idea of what it is going to be like when they become an elder so they will do things that will not harm them in the future. It is also to advocate for legislation and systems for both victims and their families.
We appreciate that these pieces of legislation were designed for lots of other people in the province than elders, but as far as we are concerned, it is a good start to combating this problem.
That sort of leads me to a point that was raised earlier by Mr Chiarelli. Please forgive me, Mr Chairman, if I digress just a little bit. It seems to me that you as a group have to decide whether or not these bills are better than what we have now. If they are better than what we have now, it seems we should get them in and fine-tune them later. You could go on and on ad infinitum to find out the exact, perfect piece of legislation -- guaranteed you will not find it.
In terms of the process today, Mrs Baker is going to deal with Bill 74, I will say something about 108 and we will both do something on 109. Then in terms of answering your questions later on, I am sure Mrs Podnieks will be able to help us there. Doris, you can start in.
Mrs Baker: I am Doris Baker, a social worker by profession. The Ontario Network for the Prevention of Elder Abuse supports the concepts of advocacy on both the individual basis and on a systemic basis. We also support the intent of the act to allow vulnerable adults to advocate for themselves.
There are several points we would like to draw your attention to as you consider these bills. The first is that appropriate standards be established for the selection, training and supervision of the advocates. It seems to be a bit of a mystery as to what that means as the legislation in its bill form has been presented to each one of us.
We also want to draw your attention to what will happen when an advocate intervenes. We hope that the advocate, in intervention, will be taught to deal in a manner of mediation, to support, alter and enhance the roles of the primary care giver, because many vulnerable adults, 80% of them, are cared for by family members. If one has ever experienced not being able to get out for a lengthy period of time -- probably most of us have experienced the crying baby -- there is somebody who will come in to help. In respite care for persons looking after older people, you sometimes have to book two years in advance to get respite from caring for a vulnerable adult, often one's parent.
We would suggest that some attention be given to advocates having access to places of safety they can recommend to abused elders, particularly the physically abused elders.
We hope that when abuse is identified, in incidents of neglect such as exploitation, psychological assault or physical harm, there is an exploration of the entire situation before recommendations for change are undertaken. We ask you to recognize that there could be a crisis situation at any time within the 24 hours and that advocacy services be available during a 24-hour period.
We ask to draw your attention to the fact that there are vulnerable elderly persons who have no homes. They are unable to read, do not speak English, and these people must have advocacy resources available to them by advocates who can respond to their particular needs, particularly if these persons are under the stress of physical abuse.
Mr Butler: In terms of Bill 108, our network appreciates that of many groups in this province, elders will anticipate their incapacity as much as most groups. We like this bill because elders will be able to designate in advance personal care and financial decisions should they become incapacitated in the future.
In terms of taking a final look at this bill, we would like you to make sure you consider some of the following points. The first one is that if the application for a guardian ever finds its way to the public guardian and trustee's office, we want to make sure that the people there who are looking at this application for guardianship are professional people who have some experience in the problem of aging, which a lot of people tend to overlook. We also want to make sure that professional people -- social workers, gerontologists etc -- are involved in applications for competency decisions and when they are judging people's capacity in terms of section 9 of this bill.
Next, in terms of judging people's competency, we find that only too often this job is being left to the so-called professionals and that the significant others in a person's life -- be they relatives, mates or otherwise -- tend to get left out of the decision. I think the committee has to look at the beneficial effect significant others could have in determining somebody's competency.
The next one has to do with clarifying the legislation with respect to the communication method that might be asked of somebody being judged -- not only language. A lot of people, especially in this province, have different languages, but there are lots of incapable people, lots of elders, who just cannot communicate with any kind of language. You have to make sure that someone will be able to communicate in the medium of his or her own choice.
The next one deals with the courts in this process. I am sure the lawyers on this committee will not be very happy about this, but I am saying maybe you should think about getting the courts out of it altogether. As other groups have represented, not only is there a severe backlog of cases, but I do not think judges per se have any special competence in this area and I think you probably do need some sort of board or panel that is filled with people who do have a competence and a special understanding of elders.
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Last but not least, of course I think it is grossly unfair to expect that in order to get to the court stage, unless somebody is going to advocate for himself, which is highly unlikely, he is going to have to go out and pay a lawyer a big buck to do it. That is not right. That should not be.
I think it was the last bullet that really sorely tempted me to hit the Scotch, and that was the question of Ontario residence in the cases of guardianship of property. Take a look at section 5 and subsection 24(2) of the bill. They just do not make sense. This is the way I am reading it. Both of these pieces of legislation say in effect that if an incapable person is living in Ottawa, his psychiatrist brother who lives in Hull cannot be his guardian. That is wrong.
Mrs Baker: With consent to treatment, the network affirms the importance and essential nature of individuals making their own determination about which treatments to accept, but we ask you to consider the following points.
Adequate explanation of an intervention or procedure should be undertaken, again in a form of language that is understood by the person to allow an informed choice. We believe that elderly people, often having spoken English for a while, under stress, in their 80s, may revert to their primary language, and it is very important for them to be able to understand in the language of their choice what is being explained to them.
We think it would be wise for the consent to be obtained by the professional who will administer the intervention or procedure. We ask you to understand that elderly persons might have need of special consideration allowing for the possibility of a lowered threshold of cognition, reduced hearing, reduced vision or simply taking a longer time to make a decision. Implied consent is not acceptable. That is subsection 5(3), not subsection 5(2) that we put down, so were a little impaired at that time. But we ask you to consider those points as you think about consent.
I am sure we are all aware that ours is an aging population, and as a society we continue to undervalue the resource of older persons. As a society we continue to have a fascination with violence and a tolerance for violence. In fact, we frequently see violence as instrumental or entertaining. It was in the 1960s that we recognized child abuse as an entity that is not acceptable. In the mid 1970s into the 1980s we began to recognize wife abuse and work towards its eradication. In the late 1980s work has begun on recognizing elder abuse. It is now estimated that of persons over 65 years of age, 40 out of 1,000, or 4% of these persons, are abused. In these presented comments to the proposed legislation, we have attempted to draw to your attention the need to focus these acts on the prevention of abuse of elderly persons. The three of us would welcome your questions.
The Vice-Chair: Thank you very much. Each caucus has three minutes.
Mr Poirier: You talk about 4% being abused -- no more? -- and you talk about physical and emotional abuse, I presume, of all types?
Mrs Baker: Correct. Abuse is a broad umbrella. Violence is one form of abuse, but there are acts of omission or acts of commission.
Mr Poirier: Thank God. I mean, I was afraid the percentage was going to be much higher, because if you are talking about one in eight or one in six women beaten --
Mrs Baker: One in 10. Perhaps Professor Podnieks could comment on that.
Mrs Podnieks: In the recent national survey on abuse of the elderly in Canada, 4% was the prevalent rate, but the report strongly indicates that this is underreporting. Because of the research methods we used, we had to eliminate many cases after the person had already admitted to certain types of abuse but simply did not complete the questionnaire. So it definitely is an underreporting. In a follow-up study of the original victims, many admitted to me cases that they had not given originally. So 4% is definitely on the very low side.
Mr Poirier: I think it is just the tip of the iceberg, is it not?
Mrs Podnieks: Oh, yes.
Mr Poirier: I think it is much worse than that from my dealings.
Were there any more specific points you wanted to change in some of these bills? I know you have said what you did not like, but would you want to make some specific points? Is there specific wording you would want? Would you be able to suggest that?
Mr Butler: One thing Doris touched on was this business of consent, which I looked upon when reading the legislation as being wink-and-nod consent. Subsection 5(1) of the bill goes to great lengths to list all the elements required for consent to treatment, and then it goes on to state in subsection 5(3) that the consent may be implied. There is just too much room for error when you have implied consent. It does not make any sense. If the area is worthy enough for a bill, surely the consent should not be implied. We think subsection (3) should be taken out entirely and something be added to subsection (1) to indicate that consent to treatment must be made either in writing, or by a recording or some other equivalent device.
Mr Poirier: I could not agree with you more. I think a lot of people have brought that point forward.
Coming from a riding that straddles Ontario and Quebec, there is the point of residency. I want you people to note that. A lot of families are cross-border. This gentleman is quite correct. If somebody lives in Hull, Quebec, and is the guardian of somebody from Ontario, it is the same family. I would really like you to look at that, because it does not make sense. Hell, if we are going to have free trade of goods and beer between Ontario and Quebec, damn it, surely when it comes to guardianship we can look at families who may live in Quebec and vice versa. I find there is absolutely no room in 1992 for that to be the criterion to disallow that type of person to act as a guardian for a member of the family. I would respectfully ask my colleagues to look into this and eliminate that.
Mr Chiarelli: Last week we had the question of those under 16 years of age. If a health professional was unable to decide one way or the other whether that under-16-year-old was able to give consent to treatment, legal counsel indicated there was a legal obligation on the part of that health professional to call in an advocate, but there was no legal obligation to call in or inquire of a family member who might not be there at the crisis. If there were an elderly person who found himself or herself before a health professional under circumstances where the health professional could not determine the competence of that particular individual, do you think there should be an equal obligation on the part of that health professional to contact the family as well as contacting an advocate?
Mr Butler: Oh, absolutely.
Mrs Baker: I would like to respond to that one as well. I believe a great debate goes on all the time in an attempt to make determinations between delirium and dementia. You could have a demented person who has a little delirium, but if you can clear up the delirium, the dementia may not be so bad and the person can make his own decision.
Mr Chiarelli: You would like to see something that indicates there is an obligation on the part of health professionals to contact the family as well as an advocate?
Mrs Baker: Yes, the reason being that to make those determinations about delirium and dementia, as I understand it one needs to know the prior history of the person: Is this a sudden onset or a long-term development? Have they recently had surgery and gone a little strange after the anaesthetic? We need to hear from the family or the very important persons in that person's life. The VIP may be the neighbour or the barber or somebody who has had an opportunity to interact with this person. They can provide information different than what one is going to get in an assessment at the bedside.
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I would like to hitchhike if I may on to this concern about the cross-border business. It seems to me rather paternalistic, or maybe it is maternalistic, or maybe it is parental or something in this day and age. I wonder why, if a son is living in Australia, this government of Ontario should make a determination about the availability of that son or daughter. We do not know anything of his or her wealth or ability to travel here within a short period of time. Certainly, as we look at the map of Ontario and see how the boundaries interact with each other, to force a person to live in Ontario to be a guardian or a conservator seems rather strange.
Mr J. Wilson: I do appreciate your comments. Mr Butler, you began by saying, and we agree, that the principle of advocacy and the principles in the bills are good ones. I would even agree they are long overdue to put into legislation. But you know as well as I do that to put something in place and try and tinker with it later just does not happen. It takes years to get a piece of legislation back on the legislative agenda to even try and revise it. We are trying to tinker with it now to get it right.
That leads me to your suggestions about one of the major problems here. Actually, your suggestions are major overhauls of what we have got in front of us. Even the simplest sentence -- which would be to allow significant others' input into the decision-making of competency, into that determination -- is a huge issue. It is a balance-of-rights issue that we have been dealing with for the last week and a day and could spend a significant amount of time on. I think are we going to have to change this legislation, because it just does not do it as it stands right now. Major issue: getting the courts out of the system -- an absolute, major overhaul of the legislation before us, whether you meant that or not.
I am going to ask you a question that I have asked other groups, because I am taking some heat in my riding. For instance, I badly need a haemodialysis machine in my riding; I have hospital beds closing at an awful rate. People ask me in all seriousness, and I do not think they are just playing devil's advocate, whether we should we be spending, as the public guardian trustee says, some $46 million, it could be, for this legislation to be implemented.
Ms McKague, prior to you, intentionally or unintentionally, talked about the fact that the reason we have two interpretations of the Mental Health Act is lack of community resources and the number of hospital beds. Now you talk about the need for respite care, that there is a two-year waiting list for that, and that places of safety will be required.
So I ask in all sincerity, should we be going holus-bolus with this legislation's implementation? Should we not be going for perhaps a scaled-down pilot project which would, I think, satisfy a lot of groups, until we see how this legislation works? Because the tremendous cost could mean that other community resources will not come on line. Something has got to give in the system. I am not setting you up, but if I am going to take the heat for this I want to know other groups are behind me.
Mrs Baker: I have not got Carla McKague's 12 years' experience -- I only have nine in terms of working with this type of legislation. I sat on a commission where there was hot and heavy debate about who could make such decisions and who could not. I think we are dealing with ethical matters. Who has the right to have an extended life and a good quality of life? Is it the 42-year-old person who needs the dialysis machine, or is it the 84-year-old person who needs the dialysis machine? I do not envy the doctors in acute-care hospitals having to triage their judgements as people come in.
I think you are asking a very basic question. We do not revere elders in our society; they are not people of worth. Our whole organization is geared towards these older persons being seen as persons of dignity, and persons to be able to hand on some information from a broader perspective. The dollar-driven economy is the one I guess we all know.
I do not know if Doug has an answer. I do not.
Mrs Podnieks: I do not know how much you have involved seniors or older people in your deliberations here. I think if you were to involve them you would find that all they want is a decent quality of life. They are not asking to take up your hospital beds. They are not asking you for dialysis. They would be the first ones to say: "No machines, no machines of any sort. Just let me stay in place, age in place. "I think you would find them to be extremely reasonable in terms of who shall have what of the pie. They are not asking for a lot of extravagant services.
Mr J. Wilson: These are elderly people in my riding. I consider it a form of elderly abuse, abuse of elders, when a state that pretends to provide services to people -- the big lie we have lived for years -- cannot provide a haemodialysis machine or a hospital bed when these people have paid taxes all of their lives and are entitled to it.
Mrs Podnieks: If they want that, but a lot of them will opt not to have it. The same with chemotherapy. A lot of older people will say: "Thanks, but no thanks. Keep me comfortable, keep me at home. Let that 20-year-old leukaemia patient have the drugs."
As I say, I think it comes back to involving these people in this process, involving them as advocates. I do not know who you are choosing here as advocates, but certainly they should be older people, and they should be of cultural diversity.
Mr J. Wilson: One last question on that. That reached the question of what an advocate is, though. An advocate cannot sway a person one way or the other into making those judgements.
Mrs Podnieks: No.
Mr J. Wilson: The way I thought I heard you was, if the elderly were involved in the Advocacy Commission, you would have different decisions than we have seen in the past, for instance.
Mrs Podnieks: No, no. That is another thought, that a lot of the advocates should be seniors, not professionals telling people what to do.
Ms Carter: I would like to address one or two points on page 2 of your presentation on the Advocacy Act.
First of all, you say appropriate standards should be established for the selection, training and supervision of advocates. I think the intention is not to specify all those points in the act, because the commission itself will be at arm's length from government and will itself make decisions of that kind. We are handing those decisions over to the people who are going to be more intimately concerned with it.
Your second point: Some abuse of people living with families and so on -- and, as we know, 80% of all the people are cared for by relatives -- will be due to burnout and strain on the part of people who are basically well-meaning and trying to do the best they can. We are trying to address that, not so much in this legislation, but we are looking at the whole question, as you know, of long-term care. That is being discussed in the community right now. There will be legislation. Questions like respite for care givers and so on will probably receive attention there, and I hope there will be more funds and more community effort diverted into that kind of direction.
Nevertheless, there are some cases of deliberate abuse where it is not just because of burnout, overload and so on. I am just wondering whether your paragraph there really covers that. Again, in your fourth point you say that where incidents of abuse and neglect are discovered, the whole situation should be looked into. I am just wondering what you would suggest in the short-term, whether you do not feel that in cases like that something needs to be done urgently.
Mrs Baker: I think a place of safety for a person, if we are into physical abuse.
One of the strange things one finds -- and I work in geriatrics and have identified situations of abuse; financial abuse, which is a very big one -- is that the elderly person, the incompetent, decides not to take any action. I am going to generalize now, which is always a problem. How can I put this? There may be situations where the older person would say, "I would prefer to have my son tinkering around with my bank account than never to see my son," the fear of loneliness and isolation.
This is why we are talking about: Let's go take a look at the entire situation. Can we get in there and mediate? Is this a situation, for example, that having the public trustee in for a period of time would help regularize the situation? The thing I have to say is that there are not many Walton families around. We would like to think there are, but kids and parents sometimes do not get along together. That may be a surprise to this group, but I believe it to be true.
Ms Carter: It is obviously a very delicate point as to whether the person is better off with the family, or whether maybe the situation is so bad that something else is going to be better. I do see that there is a real difficulty there.
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Ms Baker: But I think an advocate in that situation would be advocating for what the vulnerable person wanted, so that the person can make a clear decision, "I prefer to stay in this situation." A whole group of ethics is involved, and I think until we get working at it and until it settles down, then perhaps we will have some knowledge for you.
Mr Winninger: You certainly raised a number of concerns about Bill 108 that are worthy of consideration. I just wanted to address the last point, which requires Ontario residence for guardians under the act. It is the same sort of situation you have perhaps faced with executors as well, the administration of justice being a provincial jurisdiction. Ordinarily the province's jurisdiction does not extend beyond the boundaries of the province, subject to certain reciprocal agreements between provinces, so if a non-resident trustee such as Mr Poirier suggested were to be appointed from Quebec, you would have certain problems with that.
How do you enforce accountability to the court here in Ontario where someone resides outside the province? You may be able to do that by the posting of some kind of security or bond. Then again, in certain cases that may be insufficient. I just wanted you to know that there is a reason for that, and that is simply because our court's jurisdiction does not normally extend beyond the boundaries of the province. You do want to ensure that the court has a supervisory role over the guardian who is appointed, because that is one of the important formal safeguards that is built into this framework.
Mr Butler: Is there some other way there can be some other body, other than courts, which takes on this supervisory function?
Mr Winninger: This is where Mr Fram might come in.
Mr Fram: We would love to have you aboard, but section 96 of the Constitution requires that jurisdictions that have historically fallen within the jurisdiction of federally appointed courts, like guardianship, like the parent's patriae jurisdiction, cannot be taken out of the courts. So it is generally the view that we cannot move guardianship to a board in Ontario.
Mr Butler: If courts are going to be kept around, if they are a necessary evil, is there some way that the people who are forced to go that route, and who obviously cannot afford it, can get compensated in some way by the government?
Mr Fram: No. There are provisions for legal aid. Hopefully, we can make a process that is quite accessible. As Doris knows, and Doris was a member of the committee that I chaired for quite a number of years, the procedure under the act for uncontested matters is as expeditious a process -- where there is no objection -- as can be designed, and indeed could be no simpler or faster if brought before a board. It is only the contentious matters that will ever get heard by a court, and there you are going to need legal representation, whether it is before a board or a court, in any event.
Mr Poirier: May I respond quickly. I understand your consideration, Mr Fram, but I want to make two very short comments on this. If the two ministries of transportation in Ontario and Quebec can have a reciprocal agreement where, if I get a speeding ticket in Quebec, it will hold in an Ontario court and be subtracted from my demerit points in Ontario, and soon I will be able to drink Quebec beer legally in Ontario, surely, damn it, in this consideration we can deal with having a bilateral agreement with Quebec if we have to; we can deal with a guardian who may live across the border in Quebec while his family is in Ontario.
The Chair: Professor Podnieks, Mrs Baker and Mr Butler, on behalf of the committee I would like to thank you for taking the time out today to come and give your presentation.
ONTARIO BOARD OF EXAMINERS IN PSYCHOLOGY
The Chair: I would like to call forward our next presenters, from the Ontario Board of Examiners in Psychology. Please identify yourselves for the record and then proceed.
Dr Wesley: I am Dr Patrick Wesley, the registrar of the Ontario Board of Examiners in Psychology. To my left is Dr Bruce Quarrington, the board's consultant, particularly on this legislation. He is a former chair of the board and was a member of the psychology department at York University for 20 years. We would like to thank you on behalf of the board for the opportunity to appear to comment on this package of legislation.
In general, the board is very supportive of the provisions of all the bills before you. The philosophy of individual rights and choices is consistent with the philosophy of applied professional psychology.
We have confined our brief and we will confine our remarks to Bill 108. We are the regulatory body and we feel this is the appropriate one for us to comment on. In particular, we will be focusing on suggestions on the issue of assessors and assessment as the substance of our remarks, as it forms the substance of our brief.
It was interesting that the issue of competence of assessors was raised by the presenter from the Advocacy Resource Centre for the Handicapped, among many other very appropriate points with which we find much to agree.
The board of examiners is the statutory body under the Psychologists Registration Act, and we have regulated the profession of psychology and its practice for over 30 years in Ontario. There are almost 1,900 psychologists registered, and the number of registrants grows by approximately 75 a year. The extension of regulation to psychological associates, a new category of providers which will come under the Regulated Health Professions Act, will increase this number.
The principle area of expertise of over 1,200 of the registered psychologists in Ontario is that of clinical and counselling psychology. In addition, and relevant to this legislation, there are almost 100 additional registered neuropsychologists.
The Regulated Health Professions Act and the associated 21 professional colleges acts will give the public of Ontario broader access to the quality-assured services of demonstrably competent providers. The health care professions are given a common legislative framework and a uniform code of procedures for public protection. The stress is on the development of professions within a quality-assurance and competency-assessment model, and we would ask that this major transformation of health care professions in Ontario is kept in mind by this standing committee as it frames its recommendations for changes to the legislation.
We have followed the development of Bill 108 over the last few years with great interest. As I said in the beginning, the underlying philosophy is in line with the primary aim of applied psychology, which is to support and enhance the individual's capacity for autonomous functioning. It provides the means by which competent individuals may make their wishes regarding property management and self-care functional should they lose competence. Bill 108 also provides a system of protective services for individuals whose competence is at issue and where their competent wishes are not known. Playing a role in these services are individuals who may be assessors of the competence of individuals as defined by Bill 108 in its regulations.
Psychology, almost from its scientific beginnings in the early 19th century, has been concerned with the objective assessment of competence for specific intellectual and social functions. To the present day, the test instruments used for the assessment of a wide range of competencies have been developed by psychologists. Virtually every one of the instruments reviewed in the Weisstub report, for instance, has as its origin a research psychologist. The current practice of psychology by many clinical psychologists and all neuropsychologists is largely concerned with the assessment of competence of clients for the management of their affairs and for self-care. The referrals for such work are made largely by physicians in this province.
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Section 1 of Bill 108 defines "assessor" as "a member of a class of persons who are designated by the regulations as being qualified to do assessments of capacity." But in various sections of the bill, physicians are explicitly named as possible or, in some instances, as required assessors. Why should that be? The reason would appear to be to permit physicians to act as assessors without requiring them to meet the special training requirements required of other assessors. The naming of physicians may make sense, since there are a number of physicians who, by virtue of their training and experience, would be equipped to make competence assessments of strangers. It could also be argued that the additional training that most physicians would need in order to become competent in capacity assessments would differ in its extent and content from that required to bring other health care workers up to the ability to do assessments.
But what is surprising, and what does not make sense to the regulatory board that examines psychologists for their competence in a variety of areas, is the failure of Bill 108 to name psychologists wherever physicians are also named. A greater proportion of psychologists have more appropriate training and greater experience in the task of assessing the mental competence of strangers than physicians. This explains the material offered to you in section 5 of our brief, which begins on page 7.
May I also draw your attention to page 8 of our submission where it indicates that the special preparedness of psychologists to function as assessors has been recommended by the two committees which prepared the reports leading to Bill 108. Both the Fram report and the Weisstub report propose that psychologists be recognized as capacity assessment experts. On page 9 of our submission, the specific amendments requested are indicated. In summary, however, what our suggestions amount to in the brief is a request that psychologists be accorded in this legislation the equivalent status accorded to physicians.
Bill 108 prepares the way to recruit and recognize additional workers who, with special additional training, would qualify as assessors. With certain provisions, this is acceptable to the board of examiners. An exclusive position as assessors of capacity is not sought for psychologists alone. In the board's view, however, it is not sufficient to specify courses of training that must be completed successfully. There must also be provisions for regulating those assessors to ensure the public that their standards of work and ethical conduct will be maintained. On these matters, Bill 108 is silent.
The solution suggested in the board's brief is to amend clauses 83(c) and (d) to specify that assessors must be recruited from members of one of the health care colleges regulated under the Regulated Health Professions Act. In particular, we suggest that they might be best recruited from a subset of those health professions that have been given special recognition as diagnostic practitioners in RHPA. The controlled act of diagnosis is assigned overall to six of the 22 professions in RHPA. Four of them may communicate diagnoses relevant only to specific areas of the body: chiropody, chiropractic, dentistry and optometry -- and there will be no prize for figuring out the points of the body. The other two professions that have diagnosis as a controlled act are medicine and psychology, and they are the only professions in which the controlled act of diagnosis has any relevance or even reference to mental states.
However, RHPA allows the delegation of any controlled act, including that of diagnosis, to other RHPA health care professionals. Thus, certain other regulated health professionals, for example nurses, with appropriate special training could also function as assessors, in our opinion.
A further benefit of recruiting named assessors from the RHPA colleges is that an already existing system of regulation could be used to ensure public protection and public assurance of competence in this vital task. We set that out on pages 5 and 6 of our brief.
Two other points: We have been considering thus far professional assessors who are to judge the capacity for property management and self-care of individuals who are strangers to the assessor. This is often a complex and difficult task. If, however, the individual whose capacity is at issue is one who is not a stranger but is a person that one has known intimately for many years, the judgement of capacity need not be so technical or demanding. As set out on page 4 of our brief, the board has assumed that subsection 47(10) of Bill 108 is in part intended to recognize that a grantor of a power of attorney might wish to have a particular trusted friend or relative perform an assessment of his capacity for self-care should this ever be at issue, and the presenter from the Elder Abuse Network made this point too. If this was part of the intention, then the board wishes to endorse that intent but to draw your attention to the wording of that subsection, which does appear to limit capacity assessments only to qualified assessors.
Finally, on the last page of our brief, we wish to raise the question of capacity assessments that resulted in finding the individual capable of management of property or self-care. It is suggested that all such assessments be recorded and filed with the office of the public guardian and trustee. The required filing of such reports would provide useful information in contested cases and should also in some instances prevent shopping for positive assessments of incapacity, a danger that we suspect others will bring to your attention.
With those opening remarks, I would like to thank you for allowing us to appear and say that Dr Quarrington and I are ready to answer questions.
Mr Chiarelli: Thank you very much for your brief and your comments. I think you are pinpointing an area of concern that a number of people have expressed. I have a couple of questions. First, have you endeavoured or tried in any way to find out either from any of the ministers or parliamentary assistants or the government what they are contemplating in the regulations for the definition of "assessor"?
Dr Quarrington: No, we have not, but the language of this section that speaks about assessors clearly paves the way for the creation of a new class of workers. This is what gave us alarm. We have heard of the possibility of this sort of thing discussed at a meeting of the Canadian Institute of Law and Medicine. A particular unit at Baycrest was proposing to become a training centre for this new class of worker. That alarmed us. It sounds like an awfully expensive proposition to set up such a training program, and furthermore, to create a mechanism for disciplining such a group. It seems an excrescence when there are provisions within the health care disciplines for self-regulation in this particular area of functioning.
Mr Chiarelli: It seems to me on this particular issue the government wants a blank cheque. Under section 83, the regulation section, it says:
"83. The Lieutenant Governor in Council may make regulations,
"(c) designating classes of persons, including persons who have successfully completed prescribed courses of training, as being qualified to do assessments of capacity."
Clearly the government is contemplating something, clearly it is not telling you or me and clearly I am very suspicious when that happens. What we are really doing is delegating the right to a minister or cabinet to legislate something that is very important to people and professions without us having a clear indication.
I want to ask any of the parliamentary assistants or any of the legal counsels whether they are prepared to share, within the next couple of days, any draft regulations or any indications as to what they have in mind under clause 83(c) in terms of regulating the definition or training of assessors.
Mr Winninger: In regard to Bill 108, no.
Mr Chiarelli: There is nothing in draft form at the present time? You are saying no?
Mr Winninger: Nothing I have seen. I am saying we cannot be in a position to release such information to you in the next two days.
Mr Chiarelli: Can you tell us what you are contemplating by clause 83(c)?
Mr Winninger: No. The appropriate regulations will be drafted.
Mr Chiarelli: You expect people to come in and give you a blank cheque on the definition of "assessor," where you might be going out and training people and it is totally out of the realm of professionals or individuals or family friends of vulnerable people. Basically you are going to come up and dictate what an assessor is. That is what this section does.
Mr Winninger: I think "blank cheque" is an unfair characterization. I do not think anyone has any intention to dictate here. The appropriate regulations will be prescribed.
Mr Chiarelli: On what process? If it is not a blank cheque, what is it? Let the record show there is no answer.
Mr Winninger: I am not sure what answer you want.
The Chair: Would legal counsel like to respond?
Mr Chiarelli: I want to know what you are contemplating by this legislation which you are asking us to approve. That is a simple question. What do you mean by clause 83(c)?
Mr Winninger: I think the meaning of clause 83(c) is self-evident. It is to me.
Mr Chiarelli: Well, I am very, very slow. Tell me what it means. What training could you be contemplating there? And training of what people in what expertise with what background?
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Mr Winninger: It says in the section, "training to qualify to do assessments of capacity." That is the purpose of the training.
Mr Chiarelli: Are you going to take somebody out of grade 8 and train him?
The Chair: Perhaps legal counsel could clarify.
Mr Fram: To the first question Mr Chiarelli asked, no, we do not have regulations developed at this point. Yes, we are exploring at a very early stage, with some help from the Ministry of Health, the possibility of training people with background in assessments, what the possibilities are, what are the level of assessments we need for various purposes of the act, at least as a first level of easy, sort of black-and-white situations. There would, of course, be further references in greyer areas, but we are just at that point of early exploration of the nature of the training, the groups of professionals. Of course, we are looking primarily at regulated professions that would be competent.
You have to understand where we are now. Right now, the quality of assessments done for various purposes is at an atrocious standard. The variability is enormous. We want to get a much improved standard of capacity assessment across the province, available in every part of this province, which again is a major problem with psychologists not being available.
Mr Chiarelli: This is a political question.
Mr Stockwell: We pay the bureaucrats to answer questions.
Mr Winninger: He was not happy with my political answer.
Mr Chiarelli: You basically said you did not have an answer and the bureaucrat does. I want to know who is calling the shots. Do you know what you are doing?
Mr Fram: So that exploration is now going on. Nothing has been determined at this stage, but that is the kind of effort that is going on now.
Mr Chiarelli: Can I suggest that as a matter of courtesy, professionalism and good common sense that the process include the health professionals who are likely interested in it, such as the psychologists and others, so that they do not come in discussing legislation cold and basically sitting back and waiting for something to happen without being involved in the process? Can you give assurances that these two gentlemen and their association will be involved in the process?
Mr Winninger: This kind of consultation that you promote has taken place in the past and it will take place in the future.
Mr J. Wilson: I was interested to hear the response, though, from legal counsel that they are primarily considering as assessors those persons already included under the Regulated Health Professions Act. Surely you have given more thought to this. It is almost unbelievable, Mr Chairman, that they would think of going outside the regulated professions. I think it is a rather weak answer, especially now that, under the RHPA and through the good graces of the board of psychology, we have psychometrists and a whole pile of master-level people falling under that college. Certainly the availability across the province was greatly enhanced by that. In fact, I cannot think of any area of the province now where there would be a shortage of qualified people. It is distressing to learn that the government is thinking of creating a whole new bureaucracy and a whole new class of professionals out there. If that is not, Mr Fram, what the government is considering doing, then let's get that on the record. I mean, the word "primarily" from the Regulated Health Professions Act group, that phrase I find encouraging, but maybe you could clarify it.
The Chair: Dr Wesley wanted to respond first, I believe. No? Okay, go ahead.
Mr Fram: The nature of the training is to bring people who have some background in this to a common standard. We have not yet listed or thought about listing -- you still have to examine who has the kind of background and what level the training will be to. We are not talking about massive years of training or a new profession. What we are talking about is training people with a background in the material to a common standard over a several-day period. We are not talking about huge new retraining programs for people with no background, or creating new professions.
Mr J. Wilson: When it takes 512 pages in one of the reports leading to the development of this legislation to discuss capacity, I think you would need someone with a very deep background in mental capacity determinations. You cannot train someone over one week at the Holiday Inn. It is not going to work.
Mr Fram: No, we are looking at people who have backgrounds to start with.
The Chair: Could we have a response from the presenters?
Dr Quarrington: It is just that the language of the act with respect to assessors does not stipulate that they are going to be drawn from the regulated health professions, and it implies that there is no particular concern for background. The other comment I wanted to make is that psychology has been involved in the workings of the Fram committee, in preparing an earlier document. It has served on the Weisstub committee. Those two reports found classified psychologists as expert assessors. Then, suddenly, the bill appears and there is no mention of psychologists. Something happened between the consultative work in those first two sessions and the production of the bill which puzzles psychologists.
Dr Wesley: If I may also add to that, one cannot become registered as a psychologist, or in the new category of psychological associate, unless there have been graduate courses successfully passed in the area of tests and measurements, assessment techniques, statistics, normal adult development and the fundamentals of adult psychopathology, which five are the pillars on which the concept of mental competency assessment is based in the psychological literature. To suggest that it might be possible to take someone without that kind of preparation and turn him into an assessor is flying in the face of the 30 years' experience we have had in registering and regulating the very professionals who developed the concepts of the assessment of competency in the first place.
Mr Winninger: I have two quick questions. First, in terms of your recommendation regarding clauses 83(c) and (d), that assessors be drawn from the regulated health professions, you may recall that among the designated assessors the Fram committee proposed were social workers. I put it to you that you may have someone with a master's or a PhD in social work who has worked with the psychiatric unit for years and who would have considerable qualifications to assess, say, someone's ability to deal with personal needs; maybe not to make these medical decisions that physicians can make or the kinds of clinical decisions you can make, but to make perfectly competent, adequate assessments there. Yet they do not come under the RHPA.
Dr Quarrington: Yes.
Mr Winninger: Your amendment would exclude those kinds of qualified individuals.
Dr Quarrington: Yes, I think it is critically important that they be regulated. If social workers were regulated, I would have no objection to their inclusion, but since they are not at this time regulated, that is the concern. We know that the disciplinary functions of the voluntary college are not meaningful at all.
The Chair: Dr Wesley and Dr Quarrington, on behalf of this committee I would like to thank you for taking the time out this afternoon and giving us your presentation.
Dr Wesley: Thank you for the opportunity to listen to you.
The Chair: Well said.
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CITIZEN ADVOCACY OF OTTAWA-CARLETON
The Chair: I would like to call forward our next presenters, from Citizen Advocacy of Ottawa-Carleton. Good afternoon. Please identify yourselves for the record and then proceed.
Mr Hanvey: Good afternoon. We are from Citizen Advocacy of Ottawa-Carleton. Joan Black is a member of our board. Brian Tardif is executive director of Citizen Advocacy. My name is Paul Hanvey. I am a volunteer advocate and at the present time I am also president of the board of Citizen Advocacy.
Joan will speak to you a bit about the concepts of vulnerability and empowerment and Brian would like to spend some time speaking about Citizen Advocacy of Ottawa-Carleton, what we do as an association and also a little about volunteer advocacy.
We are pleased to be here today because have we submitted a brief to you that is generally in favour of the legislation as it sits today, the advocacy legislation, substitute decision-making and guardianship legislation. Our primary interest of course is in the advocacy legislation and our reason for being here today is, I trust, the same as yours, and that is to assist in whatever way we can to help you get the legislation as right as possible.
You have before you a brief outlining our perspectives on the legislation. The brief was put together by an ad hoc committee made up of board and staff members from Citizen Advocacy, as well as representatives from the Canadian Mental Health Association (Ottawa-Carleton Branch); Disabled Persons Community Resources; Ottawa-Carleton Independent Living Centre, and the special needs forum of the Social Planning Council of Ottawa-Carleton.
I will briefly state that while our brief is generally strongly in favour of the principles behind the legislation, we have raised some concerns and made a number of recommendations in the following specific areas: (1) the independence and the representativeness of the Advocacy Commission; (2) that the advocate's primary purpose should be to assist vulnerable persons as much as possible to make their own informed decisions; (3) issues around access to medical records and confidentiality; (4) the interaction and interrelationship between the Advocacy Commission, paid advocates, the public trustee, guardians and volunteer advocates; (5) the potential liability taken on by all advocates; (6) duties of disclosure and contradictions that we have noticed between the various acts involved; (7) review and follow-up of the legislation to enhance and ensure its effectiveness.
In the latter part of our allotted time we would be pleased to respond to any particular comments or questions about the brief. On that, I will give you to Brian Tardif.
Mr Tardif: Again, it is a pleasure to be here and I always enjoy any opportunity I have to talk about Citizen Advocacy. In Ottawa-Carleton, Citizen Advocacy has as a mandate to enhance the quality of life for people with a social or environmental limitation that results from age, disability or impairment, by matching those individuals in supportive one-to-one relationships with volunteer advocates from the community.
Recruiting people from the community to be volunteer advocates is what Citizen Advocacy does. We work with a wide range of people who have disabilities. Rather than get into labelling, I am just going to leave it there. But we do work with an extremely wide range and are probably one of the few organizations that does work with such a broad range of people.
The role of advocates is varied. The focus in terms of establishing a match between a volunteer advocate and a person who does have a disability is on the social relationship or friendship. We believe this enhances integration, develops empowerment and reduces isolation.
What we think happens, and what we know happens, as a result of forming these relationships is that a natural process of advocacy develops if and when it is needed. Sometimes just the presence of a volunteer advocate makes the difference. We have noticed that when we have matched a volunteer advocate into a one-to-one relationship with somebody who may be in a group home or some other kind of supportive living environment, not only does the individual the volunteer advocate is matched to benefit, but often other people in the home benefit as well just because of his presence.
We work with people who live in a wide range of situations, whether they be group homes, nursing homes, supervised boarding homes, supportive independent living environments, or people who live independently or with other members of their family. Most of the people we do work with, though, are people who tend to live in environments where they are particularly vulnerable because they are dependent on others to meet their needs. Again, it is the presence of an advocate or the awareness of the connection to Citizen Advocacy in our community that proves beneficial.
I would like to take the time to provide an example of one the situations that occurred recently in our organization and how it was resolved. This was a woman, a senior, who had been living alone, independently, in the community. She was in her late 60s. As the result of a sequence of events, she had been admitted into the local psychiatric hospital. Shortly after she was admitted she was certified. She was started on a course of drug treatment. This woman was matched with a volunteer advocate from the community who, I guess, just kind of monitored things to see how the treatment was progressing and, in the course of the next two weeks, noticed a significant deterioration in this woman after she had been certified and admitted to the psychiatric hospital.
Because the hospital was a short-term-stay hospital, it was decided a couple of weeks after this that the woman was going to need long-term care and was going to be moved to Brockville. There had been no consultation with anybody regarding this matter and this woman had not wanted to go. She was clearly able to say that she wanted to go back home. There was agreement, I think, with everybody concerned, including the advocate, that this person was not really able at this point in time to live on her own again, that there were certainly some difficulties, but that the move to a long-term psychiatric hospital, away from any contact with family and the friends she had established, was not in her best interests.
Through the work of this advocate and with the support of the staff at Citizen Advocacy, we were able to alter the decision of the psychiatrist so that he decertified her and she was able to stay in the community in a nursing home. Eventually, when she moved into the nursing home, she did recover quite well and decided that she did not want to go back home, that she really enjoyed the kinds of supports she was getting in the home she was in. That is volunteer advocacy and I think that is a good example of the kinds of things volunteers can do.
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Citizen Advocacy is not without its weaknesses, and I think Sean O'Sullivan, in his report You've Got a Friend, identifies that one of the weaknesses, among others, is that those most in need of advocacy maybe cannot access it through Citizen Advocacy because of our dependence on the volunteers from the community.
I think a lot of us who worked on this brief to you, and a lot of us who work in Citizen Advocacy, would agree with that. I think, as we would see it, there is a continuum of advocacy needs in the community. Citizen Advocacy responds more easily, perhaps, to those people who are in the community, to those people who are more visible to us. The people who live in institutions, the people who perhaps are less integrated or more segregated from the community, are those people who are harder to access, both by volunteers and by Citizen Advocacy.
The focus of the legislation seems to be more on that end of the continuum, and I think what we have identified in our response is the concern that there needs to be a balance here. There is a role for volunteers in advocacy; there is a role for Citizen Advocacy; there is a role for the community. We feel it is important, in implementing the legislation, that the commission really try to take a strong approach to balancing those two needs.
So we have expressed concerns about losing the volunteer advocacy component. Friendship, supportive relationships, intimacy between two people are important, and out of that there is an actual advocacy outgrowth.
At that point, I am going to stop and pass it over to Joan Black, who, as Paul said earlier, is going to talk about vulnerability and empowerment and those issues of the legislation.
Ms Black: Good afternoon. I am very happy to be here. Today, listening to all of the presenters, as well as the people on the panel who have responses, both positive and negative, I am enthralled with your learned responses and must confess that I come from a very basic point of view, a consumer's point of view. So my comments will be very brief, appear to be less learned, but hopefully will be taken into some consideration.
When we were talking among ourselves around the table about the term "vulnerability," over and over again it became clear to us that although it is beneficial for certain segments of society to have that term, for people who already have been labelled as physically disabled, mentally disabled or who have a hearing or sight impairment, it is yet another derogatory term. However, we could not come up with a term that would be more appropriate, except to say that when the advocates, on behalf of people whom this legislation terms as vulnerable, help to assist them to become more powerful or -- the current buzzword -- empowered, I can see, along with the consumers with whom I worked, the term "vulnerable" being acceptable.
When we looked at the legislation from the point of view of a paid advocate entering a facility where a person with a disability was living, we were quite concerned about the access that the advocate appeared to have into records that would describe the condition of a person with a disability without the advocate having prior knowledge of this person. As a consumer who has had this experience herself and has talked to many consumers who have had these experiences, these kinds of judgements about people who already feel sometimes downtrodden can be very detrimental. What we would like to see instead is that when the advocate is acting on behalf of a vulnerable person, the advocate see the vulnerable person first and then make appropriate assessments and consultations with other people involved in his network of professionals or significant others.
We were also very concerned about the role of advocates who were acting on behalf of people in mental health institutions. What is the role going to be for these advocates when interacting with the Ontario Ombudsman?
Last, my comment pertains directly to written responses to Bills 108 and 109. Although it may be self-evident through other presentations you have had throughout the hearings, it was very important for us to illustrate again that although we appreciate that the documentation through Bills 108 and 109 must be written, appropriate arrangements must be made for people who have to respond in other forms, such as larger print for those who are visually impaired, or tape -- another way that people with hearing disabilities, as well as other disabilities that I have not illustrated, such as cognitive disabilities, would have access to these submissions that would be equally valid as written submissions.
Thank you very much for your attention.
Mr Chiarelli: First of all, I want to thank you very much for your brief. I appreciate the fact that you put considerable study into it. You indicate whom you have consulted with and that you have given serious consideration to the legislation.
I also want to say that I think you are a good example of what we have seen over the past week and a half, and that is that citizen advocacy is alive, reasonably well and growing in Ontario, and it is a very positive dimension. I think that is quite clear. What we are seeing in this legislation, I guess, is some effort to enhance it, perhaps institutionalize it, better fund it, provide better training and maybe give a little more leadership to that particular area.
I also appreciate the fact that you support the principles of the legislation, but I have some very particular questions to ask. I want to just read a couple of points in your brief before I ask the question.
On page 14 it says: "But while the role of the advocate vis-à-vis Bills 108 and 109 appears quite clear as stated above, that role as defined in the Advocacy Act is very unclear and will be defined by the commission. Perhaps Bill 74 should be implemented first and the role of the advocate clarified prior to implementing the companion legislation." That is point 1.
Point 2 is that on the same page you indicate: "Bill 74, the Advocacy Act, suggests there will be two classes of advocates, those who are paid and volunteers. The question and concern arose regarding the relationship between the two if both were involved with the same individual. The role of the paid advocate as defined under the proposed legislation (Bills 108 and 109) appears similar in many ways to that of a court clerk. The committee felt strongly that this role was inappropriate and care and attention is required to ensure this does not occur."
In the first example, you indicated -- I am using the quote -- "very unclear," and down here, "felt strongly." There have been a number of strong advocates, people who support citizen advocacy, as I think all of us in this committee do. But the issue is, how appropriate are the particular provisions of this group of acts, this legislation that we have before us?
My question is this: We have no idea what amendments are being proposed by the government. We in opposition can propose some specific amendments, usually not accepted by the government side, so I am going to ask a hypothetical question. If the legislation, were to be passed as is, all of the bills, what is your comfort level in working with it as is and how serious do you see the problems being in working with the particular provisions as written?
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Mr Tardif: It happens that we assigned aspects of the brief to each one of us before we came down here, and the aspect you are asking about is the one I have chosen to respond to.
First of all, I want to respond to your questions around this section, because there was some real discussion around what we wrote here.
When we looked at Bills 108 and 109, again, the role of the advocate is very clear. It is a role of informing and reporting. Basically, those were the two kinds of activities that came up time and again throughout those two pieces of legislation: informing and reporting.
There was not a lot of emphasis placed on assisting people move through, and maybe that is not necessarily the role of the advocate in relation to those two pieces of legislation. But we felt, when we looked at Bill 74 closely, that the role of the advocate was vague; it was less clear than the other two. So we had some concerns about that. The concerns stem from the fact that if Bills 108 and 109 were implemented in concert with Bill 74, the resources of the advocates would probably be taken up almost completely by implementing and responding to Bills 108 and 109, and there would not be adequate resources left to respond to the demands that are going to arise as a result of Bill 74. That was where that concern arose and why we felt it was important to point that out.
As we have indicated, there are a number of recommendations that we have made in this brief. I do not think we would have made them if we felt that the legislation as it stands did not need some modifications.
Mr Chiarelli: If I can just sort of re-emphasize the question, can you live with it as it is, or would you find it more difficult than you would like to, as it is?
Mr Tardif: I do not know if I can answer that question for all of the people I represent. We certainly did not come to the decision that we could live with it as it was, but then the question was never posed.
What I would say is that the Advocacy Commission seems to have a great deal of influence over how the legislation will be implemented. Because there is a lot of uncertainty and lack of knowledge or understanding about how that is going to happen, people are concerned, and I think we would share those concerns.
The Chair: Thank you, Mr Chiarelli. Mr Wilson.
Mr J. Wilson: Mr Chairman, in the interest of time, I am going to pass. Thank you.
The Chair: Thank you. Mr Malkowski.
Mr Malkowski: I would just like to clarify two things. You said you were concerned about the access to files. The advocate would go in, but the advocate must have permission from the vulnerable person to read the files. That was one thing I would like to clarify.
The Advocacy Commission will decide the regulations in terms of what your concerns are, so do you have any specific recommendations that the committee could think about regarding the role and responsibilities of the Advocacy Commission?
Ms Black: Just to re-emphasize, the advocates who are acting on behalf of vulnerable persons have a positive perception of people who have disabilities. Often people who act on behalf of individuals with disabilities act from their own experience rather than considering the perspective of the vulnerable persons themselves. I think that is why Citizen Advocacy, at least in Ottawa, is such an effective model, because our advocates, although they may in fact be professionals in other terms, other than social work or the helping professions, come to serve the needs of a vulnerable person from the aspect of friendship. Therefore, the intimacy that is required and the respect that is required in dealing with people from that level is not forgotten.
Mr Malkowski: Would you agree that the Advocacy Act is important to protect the vulnerable person from abuses or exploitations or neglect?
Ms Black: I agree that it is an important step. It will require a great deal of visitation, perhaps first reviewing the legislation on a five-year basis; then I deem it important to revisit it frequently, because the situation and the way vulnerable people are viewed is going to change in society as we as consumers become more empowered.
Ms Carter: It seems to me that advocates, as envisaged under Bill 74, have two functions. One is to communicate with vulnerable persons and find out what their wishes are and attempt to follow them up. It seems to me that your concept of advocacy, the one-on-one volunteer, satisfies that requirement quite well. As far as I know, there is no reason under the bill why they should not do that. There is provision for people to be advocates on a voluntary and community basis.
But the other aspect of what they will be doing is to see what kinds of problems are arising in the community, which will suggest things that should be done, things that should be changed in order to overcome some of those problems. I am just wondering whether those one-on-one advocates will be able to do that kind of work and whether there is in fact room for both citizen advocates and paid advocates. I wonder how they would interact and how that would fit into your picture.
Mr Tardif: We asked that question in our brief, because again we do not feel it is really clear how the volunteer advocates will interact with paid advocates, how the volunteer advocates will interact with the Advocacy Commission. We ask those questions because we do not feel the legislation is clear, and whether it can be or not is another question. But again, it is drawing attention to this. It needs to be addressed as the legislation is either modified or as it is implemented.
You are also talking about two types of advocacy here. One is the individual advocacy or, as the legislation and the minister's background notes talk about it, case advocacy as opposed to systemic advocacy. Certainly there is room for both types of advocacy, without question.
Ms Carter: Maybe the act is not trying to cross all the t's and dot all the i's, but set up a situation which hopefully will develop and mature and the difficulties will be ironed out.
It also seems to me, in connection with records, that sometimes records will need to be used on an impersonal basis for the systemic advocacy. The fact that maybe the advocate would not know persons whose records they were looking at would not be relevant in that case because they might be using them more for statistical reasons.
The Chair: Ms Black, Mr Tardif, Mr Hanvey, on behalf of this committee I would like to thank you for taking the time out today to give us your presentation.
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EASTER SEAL PARENT ADVOCACY COMMITTEE
The Vice-Chair: I would like to call forward our next presenter from the Easter Seal Parent Advocacy Committee. Go ahead and have a seat, please. I want to thank you for coming today. Could you please give us your name and then start whenever you feel ready.
Mrs Donald: Thank you. My name is Luda Donald and I am the chair of ESPAC, which is the Easter Seal Parent Advocacy Committee.
The committee has filed written submissions dated 26 September 1991 and today. I have also given the clerk a summary of the oral submissions we will be presenting today.
The written submissions describe at length the difficulties parents and small, disabled children have in coping with the system they find themselves in and with their disabilities. Because of the time limits I have been given today in making my submissions, I will not go into these difficulties at length but hope your members will all find the time to read the written submissions.
Our submissions today are confined to children under age 16. I should say that I am also a parent of a disabled child and that all of the members of the committee are indeed volunteers and not paid. The children we represent are victims of accident; brain-injured; burn victims; amputees both by reason of accident and congenital conditions; cerebral palsy; cleft lip and palate; hydrocephalus; juvenile arthritis; muscular dystrophy; neoplasm, which is cancer in children; scoliosis, curvature of the spine; and spina bifida. These are the types of physically disabled children the Easter Seal Society represents. We are not the Easter Seal Society; you will be hearing from them later. We are the parents' committee who have organized ourselves with the blessing and hopefully the support of the Easter Seal Society.
The society serves approximately 7,900 physically disabled children in the province and provides services to those children and their families. Our submissions will be, as I say, confined to the 7,158 of these children who are under age 16.
Most of the disabilities are long-term and require ongoing medical intervention, therapeutic intervention, special education intervention. The categories I have mentioned all relate to physical disabilities, but some of these disabilities are accompanied by perceptual, intellectual, cognitive, learning or behavioural problems as well. The conditions themselves can range from mild to extremely severe.
We are making representations today in respect of Bill 74 and Bill 109. I should say that we are extremely disappointed, and that is an understatement, that children have not been included in social advocacy under Bill 74. We are equally concerned, and that is an understatement, to find ourselves and our children included in Bill 109, which we say is inappropriate for our children. We believe we are one of the groups that will be most affected by Bill 109 simply because our children are in and out of doctors' offices, in and out of surgery, in and out of physiotherapists' offices, speech therapists', and a host of other medical and health-related situations.
Dealing with Bill 74, we say that our children should be included, that children under age 16 should be included. We are not difficult to identify as vulnerable. You do not have to cast about to find a definition of "vulnerability" for our particular group of children. We can be identified by medical diagnosis alone.
Children who are disabled, no less than disabled adults, require social advocacy. We need systemic advocacy particularly because we find that the existing system of treatments and support services is often fragmented, inefficient and sometimes outright unavailable. This situation is described at length in the written submissions.
Our children, if I may put it that way, live with their parents in the vast majority of cases. Some of them live in institutions and some of them live in foster homes but most of them live with their parents. The parents of particularly severely affected children, and even those moderately affected, live lives that you, ladies and gentlemen, would find hard to believe, let alone imagine yourselves living. The physical, emotional and financial responsibilities are enormous when a child is disabled.
Parents must perform home care treatments: they are nurses; they are physiotherapists; they are special education teachers. They must perform many services which would otherwise be performed outside of the home and which need to be carried out in the home. Often one parent cannot work and therefore there is an added burden of financial problems.
The cumulative effect of the emotional, financial, physical stresses over a period of years sometimes results in a high incidence of marital breakdown. If that happens, then of course there are additional difficulties to be suffered by the family, by the parents, by the child. Of course, as you can imagine, in one-parent situations often the social system is strained as well with increasing need for social assistance, with legal aid services, with extra medical services in the form of psychological help to parents and children.
Parents do not have the time to advocate effectively on their own behalf. The only reason I am here is because my child, fortunately, is mildly disabled. They cannot be expected to advocate effectively and consistently. The problems with parent advocacy are also gone into at length in the written submissions which I have referred you to.
We find ourselves in a very anomalous situation. We say it is anomalous and it is unjust. Our children have not been included under Bill 74 and yet they have been under Bill 109.
Under Bill 74, of course, the consumers, the disabled, have representation on the Advocacy Commission and on the appointments advisory committee. Because children are not included under Bill 74, parents have absolutely no representation on the commission. They have no say, no contribution in determining how advocates are going to be trained, how they are going to be selected and indeed how the Advocacy Commission is to be run.
Yet under Bill 109 these same advocates will be intervening when a child is about to receive treatment. We find it absolutely unbelievable that this should have happened, and we certainly find it totally unpalatable. The parents are in the front lines of the treatment of these children, of our children. They want to be, quite frankly. What they need is support and what they need is a voice. We are responsible for the children's care. We love them and we are the first to know if there is something wrong in the system which delivers the care they need.
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If Bill 74 is indeed extended to include disabled children under age 16, we say that the act should be amended so parents representing the children and who are secondary consumers -- and we are -- have an equitably proportionate representation on the Advocacy Commission and in the selection process of the appointments advisory committee.
We do not wholly endorse Bill 74 as it is written. We say that if children are included, the provisions governing the accountability of advocates' rights of entry and access to records should be revised to accommodate the needs of these children.
We have not done an in-depth analysis of these particular areas, and the only reason we have not is because we were under the impression in September that these hearings would be going on forthwith and we simply did not have the resources to go into these areas. Should Bill 74 be amended, however, we would want to have some input before a first reading, before a second reading of this legislation. We would like to have some input as this legislation is drafted, and we say that parents and relevant health care professionals ought to be consulted before any amendments or revisions affecting children are made.
I then go on to Bill 109. Looking at the bill, as I mentioned before, we are extremely concerned. We do not think this bill is remedial in respect to the majority of the children we represent; we think it is invasive. We think as a result of this bill it has the unfortunate potential to impede treatment delivery, which already is questionable in our present system, it has the potential to severely disrupt and damage a parent-child relationship and it would place additional onerous emotional and financial burdens on families who are already stretched to capacity. When we look at the fact that we might have lawyers intervene on behalf of a child cared for and living with a parent and that perhaps that parent will have to bear at least a portion of the burden of that legal cost, from where we sit, ladies and gentlemen, it is difficult to believe that this Bill 109 would be introduced to cover our particular children.
Dealing with the principles in the legislation itself, we say that there is a crucial differentiating factor between adults and children, and that is that before any treatment is undertaken in respect of a child, there will have been a consent by a parent. The parents, who love the children, who take care of them, who have consulted with medical practitioners, who have indeed been recommended a course of treatment -- for example, often surgery is not an isolated act; it is part of a course of treatment -- these particular children will have a parent who has consented to treatment. So when a child expresses a wish not to be treated, the procedure envisaged, which is the intervention of the advocate, intervention perhaps of a lawyer in the review board hearing and perhaps an appeal to the courts, is not investigative in our circumstances, but right off the bat it is adversarial, because there are very few parents indeed, having gone through the decision-making process to have treatment administered, who will then turn around and acquiesce and say, "Fine, my child doesn't have the surgery; my child isn't going to get this particular therapy." This adversarial process has the awful potential of dividing parent and child. Remember, ladies and gentlemen, that these children are not going to be whisked away from the parent; they are going to continue living with the parent.
We also say that these procedures are indiscriminate and they apply whether or not the proposed treatment would constitute physical or psychological abuse of the child. We say that these remedies, which apparently are designed to prevent harm in an exceptional case, are imposed upon the majority, general population of disabled children and their parents, and the majority, general population is made up of people like me, people who are concerned, people who give up their livelihood to look after the children, people who are in touch with medical practitioners, people who are wanting to see a system improved for, in my case, my child and all the children I have met. These are the people who are the majority population, and what we are handed in 109 is a procedure which obviously deals with the exceptional case.
We say that it is the reasonable risk of harm or abuse from treatment and not the wish of an incapable child under 16 which should warrant and invoke invasive and adversarial procedures between custodial parent and disabled child. In other words, we say that whoever drafted this legislation has gone about it backwards. The wish of the child should be only one factor to consider in determining whether mental or physical abuse will result from treatment.
We do not say that the wishes of our children under 16 should not be taken into account, and most parents who undertake treatment have already dealt with that in one form or other. Medical people deal with it. But we say that the wish of the child should be one factor and the focus in invoking this rather drastic procedure should not be the wish of the child, but could there be physical or psychological abuse as a result of the treatment?
Even in the exceptional case where treatment may result in harm or abuse, we say that there should be an intermediate investigative and counselling procedure available to parent and child before they are plunged into the procedures of Bill 109. We say that the remedies for the child at risk for abuse from medical or health-related treatment could probably -- and I say probably only -- be best dealt with in legislation designed to address child abuse.
I go to the specific now. I take the example of the wonderful, caring parent whose child needs two surgical procedures, as mine did. I have a little boy who is five years old. He needed eye surgery and he needed spinal surgery. In my instance, the eye surgery was undertaken two years ago and he had spinal surgery last May.
You can see a situation where maybe the parent is overzealous or perhaps the doctors, the two specialists undertaking the surgery, are not communicating well and the spinal surgery is set for May and the eye surgery -- which takes, by the way, a couple of months to recuperate from -- is scheduled a couple of months down the road. I personally would say that amounts to abuse of a child, to insist that a child undergo those treatments so close together. That is my personal view.
If that kind of thing does amount to abuse, then what you have is a situation of not really an abusive parent, but perhaps a parent who is unsophisticated, has listened to doctors, and one doctor says you have to have this, the other doctor says you have to have that, and in these circumstances might, without consulting each other, simply arrange for these procedures to be done too close together.
Here is an example where perhaps intervention is required. But in this exceptional case, we say it is absolutely unfair and damaging for this parent to suddenly find an advocate sitting on his or her doorstep, an advocate talking to the child, a lawyer being dragged into this, a review board hearing coming up and possibly an appeal to the court, when perhaps the best way of resolving the situation is to have an investigative, intermediate counselling procedure before any such hearing is undertaken.
Ladies and gentlemen, those are all the major submissions I have. I have not gone into the full description of the lives of the parents and the children, and I can only repeat myself and hope you do read the written submissions, simply because I think that description might put into perspective the effect these two bills would have on disabled children and their parents.
The Vice-Chair: Thank you very much for that submission. Mr Chiarelli, please.
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Mr Chiarelli: Thank you very much, Mrs Donald, for taking the time to come and share your ideas and the ideas of your association. In fact when I look at your brief I note that you represent over 7,000 physically disabled children, and you have some serious concerns about this legislation. This morning we had a representative of the Ontario Coalition of Senior Citizens Organizations who also had very serious concerns about the legislation as drafted.
I was particularly interested in your understanding where you ask if you could be additionally consulted before first and second reading. You should be aware of the fact that Bill 74 received first reading on April 18, 1991, and second reading on June 10, 1991, Bills 108 and 109 received first reading on May 27, 1991, and second reading on June 20, 1991, and as I see the intention of the government, probably within four or five months this legislation will be law. It will be law with amendments unknown to us at the present time.
I understand your concern, because I have expressed that concern on several occasions to this committee, but I believe we have to step back and look at it without having a live shotgun at our heads with this legislation coming down the tube with some imperative I cannot understand, given the extent of concern of a lot of particular groups.
I have one question in particular, but I simply want to quote one thing from your brief before I ask the question. You indicate here on page 3, paragraph 12: "Bill 109, as drafted, has the unfortunate potential to severely impede treatment delivery; to severely disrupt or damage a parent-child relationship; to place additional onerous emotional and financial burdens on families who are already stretched to capacity."
I take it that this is the viewpoint of your association and your group and that you are representing them, and I ask you, if the legislation as drafted now is enacted, how would your group likely respond to that or how would you like the legislation as drafted? Is it acceptable or not?
Mrs Donald: Definitely not. Absolutely not.
Mr J. Wilson: Thank you very much, Mrs Donald. You raised the point that in your experience, and you are representing several thousand children, the vast majority of those children are looked after by caring and loving parents and that there is the possibility in this legislation, particularly Bill 109, of setting up an adversarial system between the parent and child with state intervention. Given that we have not seen, to date anyway, the studies or statistics that tell us as legislators that we need a system in place like Bill 109 for children, and the government claims it is not an adversarial system and that is certainly not the intention of the legislation, why do you think we have this legislation before us today?
Mrs Donald: I cannot go into the minds of people, but I would hope the government is aware that the disabled community needs support. As far as 109 is concerned, I have no answer, in that children are not included in 74 and they are in 109. In so far as the types of remedies that are set out in 109 for children under 16 are concerned, I can only assume that what the government would like to do is to protect those children who are at risk of abuse, but as I said, it has set up a piece of legislation which appears to be indiscriminate. So perhaps their intentions are good, but in my respectful submission today, the execution certainly does not match the intention.
Interjection: Touché.
Mr Malkowski: Thank you for your presentation today. Your concerns seem to be related to Bill 74 not covering those children below age 16, and I am just wondering if you feel the Child and Family Services Act under the Ministry of Consumer and Commercial Relations is not enough protection for children from abuse or neglect. Would that be sufficient to meet your needs?
Second, are there some kinds of resources offered within the disabled community, a way of sharing information with parents or your committee? Are you involved in any way with the disabled community in providing information, maybe as a resource type of centre?
Mrs Donald: Perhaps I will deal with the second question first. We have been set up specifically in respect of advocacy. That includes information-sharing to a certain extent. The information-sharing has been to date handled quite well by the Easter Seal Society, which unfortunately is presently finding it difficult to fund even its existing programs. That is the way of the recession. But we are an action group. We have at the present time limited our resources to looking at a few issues that appear not to be dealt with by other groups or by the Easter Seal Society. In so far as linking up with other disabled groups is concerned, we are always looking for partners -- always.
In regard to the first question, the major thrust we would like out of Bill 74 is systemic advocacy. We see abuse of the children as being very important, but we find that those incidents of abuse may well be looked after under the present child abuse legislation or under amendments to the child abuse legislation. Our focus is on systemic advocacy because a lot of the problems that parents and children encounter are not a result of incompetent service, are not a result of people not wanting to help; they are a result of fragmented, overburdened systems that do not work very well at all. What we look to out of Bill 74 primarily is systemic advocacy. That systemic advocacy may also have to grow out of individual cases which will be handled under the case advocacy, the individual advocacy.
Mr Wessenger: I would just like some clarification with respect to this question of age of children being treated. As you know, under the common law right now a capable child under the age of 15 can consent to his own medical treatment. Are you saying that we should take away that right a capable child now has to make a decision with respect to medical treatment?
Mrs Donald: No, I am not suggesting that the common law be changed at all, with this caveat: Under the legislation, apparently the question of capacity and capability which has to be determined by the treating medical practitioner has to be -- I am sorry, I am getting wound up in my own words. As I understand it, under the present legislation when a medical practitioner has to decide whether or not a child under 16 is capable, he or she must apply certain criteria. The criteria are to be determined by regulation. As a parent and representative of ESPAC, I cannot comment on that until, of course, the regulations come down. The worry we have is how easy is it for a child under age 16 to be deemed capable.
Mr Wessenger: Would you support some minimum age at which the advocacy rights could kick in?
Mrs Donald: That is a very difficult question. Again, the common law allows room, as I see it, for applying the criteria to an individual child. Some children may be very mature indeed at age 11 and other children much less mature at age 13. I would hesitate to nominate an age simply because I think it so depends on the individual child.
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Mr Wessenger: Certainly it is the intention to deal with the actual capability of a child, not his chronological age aspect, because it is quite clear that many 15-year-olds might not be competent and other 12-year-olds might be. It depends on the individual child, and I think that is certainly what the intent of the legislation is, to look at the individual child's capabilities.
Mrs Donald: If that is the intent, I am not going to pass judgement on that on behalf of ESPAC until the regulations are in place.
Ms Carter: I am a little bewildered by your approach. It seems to me that what you are saying about Bill 74 contradicts what you are saying about Bill 109, because by definition the advocates under the Advocacy Act are supposed to get the wishes of the actual vulnerable person. Now, when you are talking about children, they are vulnerable, there is no doubt about that, but in most cases they have parents who are not vulnerable. They may be undergoing great stresses and strains, and obviously we should all sympathize with that, but they are able to speak for themselves. So that if advocacy were applied to children under 16 in the same way it would apply to people over 16 under the act, you would in fact be putting a wedge between parents and children in very much the way you are complaining would happen under Bill 109.
Mrs Donald: Not at all.
Ms Carter: Can you explain that?
Mrs Donald: If I understand what you are saying, Bill 74, as we read it and as it appears to be, would provide social advocacy. Part of that social advocacy is systemic. Although parents are not vulnerable in the sense the child is, parents do not have the time to advocate.
Ms Carter: In effect, you are splitting the two functions of the advocate, the one of speaking to the vulnerable person, getting his personal wishes, and the systemic one. I can see that as far as the systemic function goes there might be a place for that, but as far as the primary function of getting the wishes of the vulnerable goes, it seems to me that in the case of a parent and child where the child is the vulnerable person that is not appropriate.
Mrs Donald: I divide also the intervention of the advocate between the medical treatment -- medical treatment is everything to us. There is not very much more that children and parents need out of the social advocacy apart from proper delivery of medical treatment, accessibility to it, special education, social and financial assistance where appropriate and so forth. These are the kinds of things parents and children need. So when I make that division, as I understand your question, I do not think I am being inconsistent. We say that consent to treatment is not the place for this sort of intervention. Consent to treatment is dealt with under Bill 109. Going back to Bill 74, though, we say that perhaps we might require less individual advocacy under that bill but we certainly do require systemic advocacy. In that sense, I do not think I am being contradictory.
The Chair: Mr Wilson, one brief comment.
Mr J. Wilson: I will pass, Mr Chair.
The Chair: Oh, thank you. Mrs Donald, on behalf of the committee I would like to thank you for coming today and giving your presentation.
ONTARIO ASSOCIATION OF PROFESSIONAL SOCIAL WORKERS
The Chair: I would like to call forward our next presenters, from the Ontario Association of Professional Social Workers. Good afternoon. As soon as you are ready, please identify yourselves for the record and then proceed.
Ms Roher: I am Susan Roher. On behalf of the Ontario Association of Professional Social Workers task force on Bills 74, 108, 109 and 110, which I chair, let me thank you in advance for paying attention to us after so many hearings, and now introduce our delegation: Doris Baker, Glenda McDonald and myself. Details about us appear on page 6 in what you have been given.
I will begin on the page entitled "Preamble." OAPSW has made prior submissions on substitute decision-making, competency determinations and advocacy, which appear in your appendices. Throughout the history of our profession, social workers have advocated for the vulnerable adult, facilitated the voice of the disfranchised and empowered the decision-making of the consumer. Central to the practice of professional social work is the involvement of the consumer. We have members throughout the human service system; for example, in health, social services, mental health, education, housing and corrections. Now that you have been preambled, we will move along quickly.
OAPSW supports Bill 74 in its sanction of advocacy on an individual as well as a systemic basis and its intent to remove barriers that inhibit vulnerable adults from advocating on their own behalf. We recognize the need for advocates to have relevant standards, experience and skills to ensure objective and realistic outcomes.
Further, we recommend that advocacy actions be based on an understanding of the vulnerable individual in the context of the situation and/or system which is perceived to be infringing on one's rights.
We recommend that advocacy efforts be mediative and non-adversarial to promote and strengthen the appropriate care-giving behaviours of the social and/or family support systems and to maintain these systems.
Further, we recommend that more detailed consideration be given to incorporating existing advocacy interventions into the new advocacy system. For example, many social workers utilize their expertise in advocacy in existing programs, and we indeed have heard from citizen advocates today as well.
We recommend that situations of abuse, neglect or exploitation be seen to require both immediate response and long-term solutions involving behavioural, community and organizational changes.
We recommend that implementors of the act consult professionals with demonstrated competencies in case and systemic advocacy -- such as, by the way, social workers -- for selection, training and supervision of advocates.
We recommend that in the recruitment and hiring of advocates attention be given to cultural matching and the distinct needs of culturally specific populations.
We recommend strongly that an accountability mechanism be developed to review the actions of advocates.
We recommend that evaluation of the advocacy system be driven by consumers and other stakeholders.
I would like to add one recommendation that occurred to us later. We recommend that someone who has the authority decide whether a person is vulnerable.
Mrs Baker: It is my opportunity to talk with you about the Substitute Decisions Act. We might subtitle this "How Steve and I Spent Two and a Half Years of our Tuesday Nights." OAPSW is in agreement with the principle in Bill 108, that of allowing capable persons to determine future treatment decisions should they become incapable. We further support this proposed legislation in its aim to protect vulnerable adults from financial exploitation, physical abuse and neglect.
But we urge the government and this committee to consider the following recommendations in relation to this legislation.
We believe that adequate provisions must be made with resources and personnel to undertake the services that are proposed. For example, we believe that there are now large numbers of people in institutions who would need to be assessed and have substitute decision-makers assigned to them prior to moving to community organizations. We would like to see that there is an acknowledgement to utilize the particular education and expertise of social workers for service delivery under this legislation. Social work was acknowledged in the Fram report; it was dropped in the Weisstub report. We do not know why. We believe that including social workers in the multiprofessional assessment of competency is essential. If you look at section 46, within the six component parts we talk about shelter, clothing, hygiene and safety. That seems quite important to the work social workers are frequently called upon to do.
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We believe in the multiprofessional assessment. We think this is such a serious event, to have someone's capability of making his own decisions taken from him, that no one profession should be allowed the responsibility to undertake that. We believe that family members and/or significant others should participate in these determination decisions. It is a known psychological fact that the things we are involved with are the things we commit to.
We believe there should be protection for the fundamental rights of the individual to make a decision that might be considered non-conforming. I guess we would call these people eccentrics, or having eccentric behaviour. We recognize that the education and psychosocial approach of our profession ideally qualifies us to assist in the proposed training of assessors. We recommend that all assessors complete a recognized training program and that a method for accountability be established.
Earlier today we heard from ARCH, supporting social workers. We heard Carla McKague speak on our behalf and we heard the psychology association speak on our behalf. As you are aware, we are not a member of the professions in the Regulated Health Professions Act, but that is another debate for the legislators, as we get our legislation.
Ms McDonald: I am Glenda McDonald and I am going to speak to the Consent to Treatment Act, Bill 109. OAPSW endorses the important principle of self-determination which underpins the Consent to Treatment Act. We also recognize and appreciate the advantages of consolidating all consent-to-treatment legislation within one act. As well, we feel that legislation is important to ensure that advanced decisions on health care are respected and followed. However, we do have one recommendation, and it follows on the point my colleague has just made; that is, in considering the consent-to-treatment legislation, we recommend that active support for social work legislation is consistent with the spirit of this bill.
We wish to bring to the attention of the committee, although I was encouraged to hear that the committee is already recognizing it, that the current definition of "health practitioner" in this legislation would relate to those who are currently legislated under the Regulated Health Professions Act. Once again, social work is not regulated under this act, nor any other. Subsequently, the professional practice of social work could conceivably not be governed by this legislation. We would not wish to leave the committee with the understanding that social work would not seek consent to treatment in health care decisions in the course of our work. However, this omission continues to diminish the importance of the contribution of professional social work within health care delivery systems.
I am also going to comment briefly on Bill 110 in that it addresses the policies and procedures governing the use of representatives of vulnerable adults in the appropriate acts. It underscores the critical importance of the selection, reliability and accountability of all substitute decision-makers. It also follows that a viable monitoring and appeal system is required to oversee the decisions of designated representatives and the subsequent impact on the lives of those affected. Thus, we recommend that the social work profession be included as a clinical resource in assessing the need for and selection of substitute decision-makers and for consultation on accountability and review concerns.
Mrs Baker: In conclusion, in case you have not heard us, we have been trying to demonstrate to you the suitability of the social work profession's mandate, education and expertise. I believe we could play a pivotal role in the refinement and implementation of this legislation. We believe that Bills 74, 108, 109 and 110 each deals with very complex and very sensitive human decisions. We would like to stress the potential of family, friend and facility care-giving processes as they could underscore the human rights component of self-determination, informed consent and quality care.
At present, social workers in many facilities are providing a core service of interventions integral to the process of decision-making. On behalf of the Ontario association we recommend that social workers' practice, knowledge and skills be well utilized in the complex planning and implementation of the bills before you. We would be happy to respond to questions.
The Chair: Thank you. Questions and comments. No questions? Ms McDonald, Ms Roher, Mrs Baker, on behalf of the committee I would like to thank you for taking the time out of your busy schedules to come and give us your presentation today.
The committee adjourned at 1656.