CHILDREN'S AID SOCIETY OF METROPOLITAN TORONTO
FAMILY ASSOCIATION FOR MENTAL HEALTH IN ETOBICOKE
CONTENTS
Monday 22 June 1992
Advocacy Act, 1992, and companion legislation
Children's Aid Society of Metropolitan Toronto
Dr Peggy Robertson, medical director
Heather Katarynych, senior legal counsel
Family Association for Mental Health in Etobicoke
Bill Sande, chairman
Judy Wallace, coordinator
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Cooper, Mike (Kitchener-Wilmot ND)
*Vice-Chair / Vice-Président: Morrow, Mark (Wentworth East/-Est ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
*Carter, Jenny (Peterborough ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
Curling, Alvin (Scarborough North/-Nord L)
Harnick, Charles (Willowdale PC)
Mahoney, Steven W. (Mississauga West/-Ouest L)
*Malkowski, Gary (York East/-Est ND)
Runciman, Robert W. (Leeds-Grenville PC)
*Wessenger, Paul (Simcoe Centre ND)
*Winninger, David (London South/-Sud ND)
Substitutions / Membres remplaçants:
*Owens, Stephen (Scarborough Centre ND) for Ms Akande
*Sullivan, Barbara (Halton Centre L) for Mr Mahoney
*In attendance / présents
Also taking part / Autres participants et participantes: Sterling, Norman W. (Carleton PC)
Clerk / Greffière: Freedman, Lisa
Staff / Personnel: Swift, Susan, research officer, Legislative Research Service
The committee met at 1630 in room 151.
ADVOCACY ACT, 1992, AND COMPANION LEGISLATION / LOI DE 1992 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Consideration of Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / 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 / 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 / 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, 1992 and the Substitute Decisions Act, 1992 / Loi modifiant certaines lois de l'Ontario par suite de l'adoption de la Loi de 1992 sur le consentement au traitement et de la Loi de 1992 sur la prise de décisions au nom d'autrui.
The Chair (Mr Mike Cooper): I'd like to call this meeting of the standing committee on administration of justice to order. We're resuming on the second round of presentations to the amendments on Bill 74, the Advocacy Act, Bill 108, the Substitute Decisions Act, Bill 109, the Consent to Treatment Act and Bill 110, the Consent and Capacity Statute Law Amendment Act.
CHILDREN'S AID SOCIETY OF METROPOLITAN TORONTO
The Chair: I'd like to call forward our first presenters, from the Children's Aid Society of Metropolitan Toronto. Good afternoon. I apologize for the committee for the delays, but we're ready to proceed now. As soon as you're comfortable, could you please identify yourself for the record and then proceed. You'll be allowed about half an hour for your presentation. The committee would appreciate it if you'd keep your remarks to about 20 minutes to allow some time for questions and comments.
Dr Peggy Robertson: Good afternoon. I'm Dr Peggy Robertson. I'm here today on behalf of the Children's Aid Society of Metropolitan Toronto. Accompanying me is Ms Heather Katarynych, who's behind me. She's the senior legal counsel for the society.
Thank you for the opportunity of speaking with you today. The CASMT has filed a submission, and you should have a copy in front of you. We ask that you consider it in addition to what I have to say. Because of time constraints, I will not be reviewing the submission point by point but will be highlighting certain issues that are important to us.
Enclosed in your copy of our submission and forming a part of it is a letter prepared today setting out the specific provisions of the Child and Family Services Act that require reconciliation with the proposed consent to treatment legislation.
Almost seven years ago the Child and Family Services Act and its regulations, all of which bind the CAS, came into force. It carefully balanced the rights of children, the rights of parents and the rights of the state. Our difficulty with the proposed consent to treatment legislation is the integration of it with CFSA. Essentially the proposed legislation tilts the balance unacceptably and in a way that undermines the rights and the responsibilities of the state to children. We have no problem with capable children being able to consent to needed treatment. Our problem is the capable child's right to refuse needed treatment.
I have been practising family medicine for 10 years, and two years ago left practice to be the medical director at the society. I left a practice filled with runny noses and relatively minor problems. Virtually none of my patients had any involvement whatsoever with the child welfare system. In comparison, when I undertake the admission medical examination of children entering society care, I often encounter apathetic children, withdrawn children, kids who are aggressive, filled with self-destructive behaviours, children who are depressed and children filled with fear. They often have a fear of retaliation by the child's abusers.
I often recognize psychiatric diagnoses, including hyperactivity, depression, psychosis, conduct disorders and oppositional defiant disorders. I frequently document physical findings, including rampant skin, ear and chest infections, sexually transmitted diseases, dental cavities, the stigmata of physical abuse, neglect and developmental delays.
Several weeks ago, at 2:30 in the morning, I was awakened by a call about a 13-year-old girl who'd been found naked in a crack house. She was unconscious, had no identification, and was rapidly taken to hospital, where emergency treatment was undertaken. She was sent to the ICU with intravenous running, oxygen on, a tube into her bladder, and many tests were performed to ascertain the cause of her coma and then to provide the appropriate treatment. Tests revealed a very high blood alcohol content.
Once this child, who was identified as Debbie, regained consciousness in the ICU, she didn't like it one bit and began to refuse any further treatment and investigation. Once fully conscious, under this proposed legislation, she would have been found capable, but she still needed medical intervention, and that's the very intervention that she refused. At a minimum, this 13-year-old named Debbie needed investigation, possible treatment of sexually transmitted diseases, treatment for alcohol abuse and treatment for the behaviours that had placed her life in jeopardy that night.
When I examine kids at Children's Aid Society, I involve them, capable and incapable alike, to the best of their abilities, in the treatment plan that I propose. This is as CAS requires me to do. When Debbie was discharged from the hospital, and she was still refusing any further medical intervention at that time, in our clinic I said: "Choose the doctor you want. Choose the time of the examination. Choose what position you want to have your gynaecological examination in. Choose what friends you want to come for moral support." But the only non-negotiable part was the gynaecological examination itself, as it was really medically indicated in this child.
The bottom line of the Child and Family Services Act is the promotion of the best interests, protection and wellbeing of the child. That's section 1. The CFSA is explicit that a child's wishes be taken into consideration regarding the plans of care, where the child lives, dental care, medical treatment and psychiatric and psychological services.
The CFSA is really clear that parents are responsible for making decisions about their child's needs, and should they fail in their caretaking duties, that is, they're either not functional parents or functioning as parents, the court examines the decision of the parent versus the needs of the child. We do not consider all parents who refuse treatment for their children or put children at harm mentally incapable -- some are -- but we do hold them accountable for their acts and their omissions.
Where the society is the child's parents, it has the same responsibilities as a parent. With the state, though, the accountability is even higher. For example, there are regulations under CFSA which specify the frequency with which a child should undergo a medical examination. The details of all this are in your submission.
As I indicated at the beginning of my talk, we are pleased to see that the proposed legislation would allow capable children to consent to needed treatment. However, if a child meets the criteria to consent, then that child surely will meet the criteria to refuse needed treatments. This is problematic for children's aid societies in fulfilling the stipulations of the CFSA. For example, children over 12 may want to refuse a medical admission under the proposed legislation, although this is required by regulations under CFSA.
In addition, further medical examinations may be prompted by disclosures of abuse once psychological or psychiatric treatment has consent or the child is safe and secure within a foster home. As we understand it, if any child objects to a medical investigation or treatment, he has the right, under the proposed legislation, to see a rights adviser. This results in a delay that may be detrimental to the child's health. How do I then, as a medical doctor, balance the child's right to call the shots, so to speak, versus his need for treatment and my duty under CFSA to ensure that child gets needed treatment? How do I balance that?
For our kids, delays in treatment may cause many problems. Children may suffer more and unnecessarily, and complications may result. For instance, a simple cavity that could be filled by the dentist may progress and turn into an abscess in the jaw.
A delay in treatment may change an easily treated condition into a chronic, debilitating one. For example, a fracture incurred when a child strikes a wall with his hand may require setting immediately, but if that isn't done, the child may have his finger heal crookedly and that can result in a long-term disability. A delay in treatment may cause death. For instance, failure to treat asthma promptly and competently can cause asphyxiation in less than an hour, and that's even before a child may be able to access emergency medical treatment.
Our kids may refuse treatment for many reasons, and they may well be capable despite their refusal. It's known that abused and neglected children may not value themselves as people who deserve help, even medical help, even in circumstances where their health is compromised. Abused and neglected children may have a high tolerance for pain as a result of their life experiences. Some children don't readily admit to having any problems whatsoever, especially teenagers, and they may deny health problems because they feel they're unworthy of help, invincible or a combination of both.
Abused and neglected children, as well as behaviour-disordered children, often have difficulties dealing with authority figures, including doctors, and may not access health care readily or willingly. Even in the face of overt and serious illness, our children may not seek medical help in a timely fashion or have the faintest idea what a timely fashion is.
This is not necessarily reflective of a lack of capacity as defined by the proposed legislation. Our kids may be able to understand information relevant to decision-making concerning their treatment, be able to spout out the foreseeable consequences and seem to appreciate the consequences of a decision or lack of one and still say no.
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A sexually abused daughter may refuse an exam, suspecting that the results of that examination will incriminate her dad. A physically abused child may refuse an examination or ongoing treatment out of loyalty to his mother who's substance-abused. In many cases with our children, the children themselves parent the parents. This is part of the reason they make decisions the way they do. It has nothing to do with capacity as the proposed legislation is defined and it has everything to do with the way they see their priorities in life.
Assessing capacity, especially in children and particularly of kids in children's aid society care, is very complex. How are such diverse health practitioners, as defined by the proposed legislation, such as nurses and dental surgeons, trained to assess capacity? Well, I contacted the appropriate governing bodies and was informed that there is no such training for those health practitioners in assessing capacity. How then can they responsibly assess the capacity of children in CAS care who are refusing needed treatment?
Say Debbie visits a general practitioner, who finds her capable and sends her off to the gynaecologist, who finds her both in need of treatment and incapable. How does the proposed legislation decide between competing opinions of capacity? We looked for a mechanism for this in the proposed legislation but didn't find one.
We also looked for a mechanism in the proposed legislation for reviewing capacity -- not incapacity, but capacity -- and didn't find one. Capacity is an evolving skill starting in the latency-age child and developing further into adolescence and beyond, if it ever develops, requiring the ability to think in the abstract, forecast possibilities and project future consequences. For children in CAS care, thinking processes may be impaired because of emotional, physical and sexual abuse, sometimes neglect as well, and these are things the children may have endured in their lifetimes.
Debbie, for instance, may appear very pseudo-mature and worldly because of her abusive past but in actuality, while she may, in the opinion of the health practitioner who saw her for a quick 15-minute visit and doesn't know her, seem able to appreciate the parameters of the decision and passes the test for capacity under the proposed legislation, her refusal to consent to examination and treatment beyond the emergency treatment provided may impair greatly her short- and long-term health. Those responsible for Debbie on a day-to-day basis, who see her day in and day out, know that the last thing on her mind is concern for her own wellbeing.
The cost to this child of her refusal may be undiagnosed and untreated sexually transmitted diseases she shares with other people and which results in complications from unchecked infections. Debbie may, because of her past abuse, not even care about her own body. So what message do I, as her physician, give her if I reinforce her refusal in the face of potentially serious complications and do not seek an override to it if I find her capable as defined within this proposed legislation?
For those children in society care who, like Debbie, present themselves as pseudo-mature and capable, as defined by this legislation, there are no means to review the capacity finding itself, nor should any child in society care be labelled as mentally incapable by virtue of his refusal to consent.
For these and for many children, labels are extremely sensitive issues and to be labelled as incapable for treatment purposes alone is to be perceived by our kids as being sick in the head and it's just another deficit in their lives.
In summary, we support the right of capable children to consent to things that are designed to benefit them. We cannot support the child's right to refuse consent to treatments considered beneficial by those adults who are responsible for his care in custody, be they parents or state substitutes. The price of complying with the proposed legislation is that we disrespect and devalue these children, for whom we are responsible. We can't do that, and that's why we're here today.
Children in the care of children's aid societies are a special class, as in fact the province recognizes them under the CFSA. We urge you to promote in this proposed legislation the best interests, protection and wellbeing of these children, as the CFSA commands us to do. Thank you. Both Ms Katarynych and I are prepared to answer any questions you may have.
The Chair: Thank you very much. Each caucus has about five minutes for questions and comments.
Mrs Barbara Sullivan (Halton Centre): Thank you very much. I think we're going to want to spend some time in committee on this issue, because when the government drafted amendments, I'm sure the problems you've raised weren't contemplated.
You're saying several things to us. One of them is that for a child in care or in secure custody to receive the appropriate care that is statutorily mandated under the Child and Family Services Act, in fact by Bill 109 that child would have to be declared incapable, and indeed some of the children who are in care could not be assessed as incapable because their problems aren't mental incapacity. They may be emotional or social imbalances for a period of time or for a longer period of time.
Dr Robertson: That's right.
Mrs Sullivan: What I'm wondering is, if you have looked at the Child and Family Services Act or the Consent to Treatment Act and could define for us what powers should be underlined in either one or the other so there isn't this conflict, so the children's rights as well as the duty to provide care are protected, whether it's through a children's aid society or in a secure home or in another area, where do you see appropriate amendments best fitting, or appropriate changes to either one or the other piece of legislation?
Dr Robertson: May I defer this to Ms Katarynych?
Mrs Sullivan: Sure.
Ms Heather Katarynych: We spent considerable time over the weekend doing exactly that, and it's set out in a letter dated today that's in the inside of the submission. It goes through each of the sections of the Child and Family Services Act that would require attention, whether by way of amendment or by way of integration with the consent to treatment legislation, specifically Bill 109. I don't know whether you want us to go through each of those -- it's a six-page letter -- but we're certainly prepared to do it if you wish that.
In addition to that, in the submission itself, at the very last tab, is a letter that was written last week to Gilbert Sharpe, the legal director of the Ministry of Health, setting out specific questions we had in relation to particular provisions of Bill 109, Bill 108 and Bill 110 as they relate to CFSA. Those two pieces of documentation in the brief itself set out the responses we would have to the questions you raise, Mrs Sullivan.
Mrs Sullivan: Thank you. I think it's useful to point that out for the record, because while we have the documentation, I think we're going to want to pursue this with counsel.
Could you talk about specific regulations under the Child and Family Services Act that currently affect the duty to provide care in comparison to the rights of children?
Ms Katarynych: Yes, we're happy to do that, if I could just get a copy.
Mr Norman W. Sterling (Carleton): While you're doing that, could I just have a supplementary? In terms of the amendments, are the amendments that have been introduced the things that triggered your concern, or was it before that?
Ms Katarynych: Yes, they were.
Mr Sterling: Which specific amendment was it? The 16 to 12?
Ms Katarynych: May I address that?
Mr Sterling: Yes.
Ms Katarynych: It was the removal of the presumption. We were aware certainly of the legislation as it was moving forward through its various stages, and that there was in that legislation the presumption: 16 and over presumed capable, rebuttable; 16 and under presumed incapable, also rebuttable. Although there were some concerns that we had around how that would operate within the context of the CFSA, the rebuttability portion was for us sufficient to work within the difficulties.
We were caught by surprise when the presumption was removed. We were advised that that had happened actually on May 4 and we were invited to a consultation chaired by our ministry and the Ministry of Health representatives from those two ministries that alerted us to the reasons for the change and basically the impact. It was at that point in time that we began our analysis of those particular changes on the legislation that binds us. That's what has prompted our appearance now.
Mr Sterling: But if it was still 16, would you be making the same presentation?
Ms Katarynych: It was the presumption that children 16 --
Mr Sterling: Okay, I know that, but if the legislation was as it was, you wouldn't be here today?
Ms Katarynych: No, we would not, because we would be attempting to work within the presumption relying on the rebuttability to deal with those children who would otherwise be capable or incapable and looking at having that addressed in a review. But it was the removal that caused the problem.
Mr Sterling: If the common law were in place, that would be adequate?
Ms Katarynych: No. Our position on --
Mr Sterling: That's what you're operating under now?
Ms Katarynych: No, we aren't. We're operating on the common law as we interpret it to have been overruled by specific provisions of this statute, by inference from all of the duties in the statute that rest with parents and state care providers. To that extent, we regard those duties as abrogating those aspects of the common law that get in the way of that.
We understand that to have been the exact intention of this province when it put into the Child and Family Services Act the specific duties on service providers that it did. The whole point was to make them very highly accountable for the delivery of service. Which meant there had to be a very careful balancing of the rights.
Mr Sterling: I'll forgo my time.
The Chair: Mrs Sullivan, you still have two more minutes left.
Mrs Sullivan: I could have started back there, but I wanted to follow along to ask the presenters again to speak to the conflict between -- the requirements of the regulations under CFSA in providing the duty to care specifically that are now affected by the changes to the consent or the amendments presented to the consent bill.
Ms Katarynych: In the regulations themselves, there are two regulations made under the Child and Family Services Act. One is 550/85 and the other one is 551/85. The particular regulations that are directly affected are in 550/85, sections 65, 66, 67, 77, 78, 79, 84 -- beginning at 84, the regulations speak directly to medical and dental care -- 85, 86, and then in relation to foster care, 103, 104; over then to regulation 551/85, which specifically addresses children's aid societies on issues of medical and dental treatment as well as psychological and psychiatric assessment and treatment -- section 4 of Ontario regulation 551/85.
All those regulations are designed to reinforce provisions in the Child and Family Services Act that relate to the delivery of service to the children. Many of the components that are now defined as treatment under Bill 109 impact on those. We set those out in detail in our submission to you.
The Chair: Thank you, Mrs Sullivan. Further? Mr Sterling.
Mr Sterling: I guess the basic conundrum we find ourselves in is that we had many people who were involved in the counselling of young people who were capable and did not want the presumption of those young people being incapable. In particular it dealt with young women who were going to seek independent medical advice. I guess we're caught in a bit of a conundrum here. I understand the purpose of the act is to empower the individual as much to make the consent, and basically your argument is that even though a person is capable, we want to withhold that empowerment.
Dr Robertson: No, that's not our argument.
Mr Sterling: You're saying within the CFSA in effect -- I'm not disagreeing with you necessarily. You're saying that for the good of this individual, you want to be able to have individuals treated in spite of the fact that they don't want to consent to the treatment.
Dr Robertson: The flip side of being able to consent to the treatment is the ability to refuse.
Mr Sterling: Yes, I understand.
Dr Robertson: We often find that for many reasons, while the child may be capable, he will refuse a needed treatment. Because we are obliged under the CFSA to protect children and work with them to secure their best interests and their wellbeing, physically, emotionally and otherwise, sometimes we have to insist on treatment. If we have no power to insist on treatment where that's necessary to secure the wellbeing of the child, we're unable to fulfil our obligations.
Mr Sterling: I guess I'd make that argument with a number of other -- that doesn't only hold for children.
Dr Robertson: Absolutely.
Mr David Winninger (London South): I appreciate the views you've expressed but I have a little bit of a problem with the legal position you're taking. In my former life I represented children in child welfare proceedings and one of the biggest problems then was how you can enforce treatment on a child who is capable of refusing appropriate treatment.
Quite frankly, I can't see how these amendments change in any way the basic common law position, which was that a child who is capable can either consent to or refuse treatment. That even extended to the juvenile justice system where young people who were the subject of court orders and who were found guilty could not be ordered to have appropriate treatment that might change the whole course of their lives. I'm just wondering how these amendments we're putting forward change what is right now the status quo to the detriment of children.
Ms Katarynych: First of all, the statute under which we operate is a protection and care statute, and when it was amended to the extent that it was when it went into force in November 1985, in providing a number of very specific duties on children's aid societies and other care providers to deliver a certain standard of service, it basically provided then a scheme by which once in care any right a parent might have, let alone any right a child might have at common law, we interpreted to be an abrogation of the common law right. The price of not interpreting it that way was an inability to carry out those duties under the statute and would in fact be the inability now.
Mr Winninger: I agree if you have a wardship order the rights of the parent to consent are supplanted by the agency.
Ms Katarynych: Yes.
Mr Winninger: But the rights of the child, when capable, to refuse or consent to treatment were not necessarily supplanted, were they, by the children's aid society?
Ms Katarynych: They were not done specifically in the statute by a provision that addressed that. How they were done was by inference from those sections that provided the duties, because if you work on the basis that every act is remedial and that the whole point is to ensure its object and its intent and you keep in mind particularly the public consultation that went on at the time that dealt with the standard of care to be delivered to children, those provisions of the statute, by inference, we interpret to override the child's consent to refuse the way we interpret them to override the parent's right to refuse under common law. That's how we carry out the objectives of the statute.
Mr Winninger: I understand your position.
Ms Katarynych: Except where CFSA provides otherwise.
Mr Winninger: I know my colleague has a question.
Mr Paul Wessenger (Simcoe Centre): I just have some difficulty with this suggestion you put forward to try to distinguish between the right to refuse treatment and the right to consent to treatment. It seems to me that you have the right to deal with treatment either by refusing it or accepting it and you can't really distinguish between the two. I don't see any legal basis for that and I'd just like to ask you if you'd agree with that: that there's no legal basis.
Ms Katarynych: That's our difficulty as well. We would like to see the consent to treatment go forward. It's only the refusal that we have a problem with. If the refusal is going to cause harm -- I'm sorry, I don't understand how that is amusing. We set out in our recommendations how we would see the harm and the refusal being dealt with in a way that would balance that child's rights, short of allowing him to have autonomy where it's causing him harm.
Mr Wessenger: I'm just saying, as a lawyer, I can't see any court dealing with the difference between a person making a decision of refusing treatment or consenting to an actual treatment. To me, it's one and the same and I don't think in law you can make that distinction. What you're advocating then is the position that the children's aid should override the right of a capable child to make decisions concerning his treatment. Is that really what you're advocating, that it should override because --
Ms Katarynych: All service providers who have duties and responsibilities that are mandatory under the Child and Family Services Act, which includes the Children's Aid Society, yes.
The Chair: Dr Robertson, Ms Katarynych, on behalf of this committee I'd like to thank you for taking the time out this afternoon and giving us your presentation.
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FAMILY ASSOCIATION FOR MENTAL HEALTH IN ETOBICOKE
The Chair: I'd like to call forward our next presenters, from the Family Association for Mental Health in Etobicoke. Good afternoon. Just a reminder from the committee that you'll be allowed a half-hour for your presentation. The committee would appreciate it if you keep your remarks to about 15 or 20 minutes to allow time for questions and comments from each of the caucuses. As soon as you're comfortable could you please identify yourself for the record and then proceed.
Mr Bill Sande: I'm Bill Sande, chairman of FAME, and this is Judy Wallace, our coordinator, who is going to speak to the amendments.
Ms Judy Wallace: Thank you for this opportunity, ladies and gentlemen. I'd like to start with a series of notes, which is the single sheet we gave you, with comments from some of our members who were not able to come but had very specific concerns.
The tenor of this package of legislation seems to come from a narrow perspective of rights -- rights as isolated from responsibilities. It is important to protect individuals from potentially abusive, demeaning or disempowering situations. However, to concentrate on rights only leaves those same people even more vulnerable.
Responsibility entails not only the ability to make a decision but to truly understand the impact of those consequences that result from a decision and to be able to adjust one's life to those changes.
The advocate's role as defined in these acts can in many circumstances provide a partial picture to someone who is ill, which can exacerbate the illness. The advocate also seems required to inform the individual that wishes and directions expressed earlier can be overturned. It appears the protection that is offered through the power of attorney is only valid so long as the individual continues to agree, whether well or ill.
In many situations of mental illness, without a knowledge or history of the individual under assessment, he or she can incorporate this process into a delusional system and thus appear competent rather than be competent, thus undermining his or her own wishes. In this assessment of capacity, the definition is sufficiently vague to result in situational implementation that will vary perhaps widely, as now happens from one medical practitioner to another.
This new legislation appears to create yet another set of legalistic, bureaucratic barriers to treatment. It also assumes that anyone who is seeking treatment, or to treat a person with an active mental illness, is doing so from an adversarial position. There have been instances in which the treatment rendered to an individual was not appropriate. However, in the protection of the few we seem to be putting the many at greater risk.
The next, which is the larger package, is what our organization has put together.
The purposes of this bill, Bill 74, are laudable. However, there are assumptions made that do not reflect an accurate assessment of the existing situation. Again, this bill assumes that an adversarial situation always exists between mental health survivors and the mental health system; between mental health survivors and their families; between families and the mental health system. Although this may be the case in some individual situations, it does not accurately reflect what many families and their ill relatives feel. The enactment of legislation to protect these few disregards the needs of many.
The role of the advocate is still being enacted in 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.
The advocate should, when explaining the individual's rights, 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, and to accept responsibility for accommodation and basic needs. No decision that is made can be implemented without affecting other aspects of an individual's life. Although the advocate is mandated to assist the individual to make a decision based on rights, the exercise of those rights must be viewed in terms of the attendant risk factors. Those factors may include housing, income, ability to meet basic needs, impact on significant others and the adequacy of the existing support system.
The Advocacy Commission is composed entirely of survivors with no consideration of the advocacy needs of families. The establishment of a committee to advise the commission on which families may sit, paragraph 10(2)1, does provide for a family voice but one with no teeth. Families have experience in participation on community advisory boards and committees for a number of organizations. We have found that although family views are accepted graciously, their impact is at best minimal. If an advisory committee is to have a purpose, it must have a mechanism for ensuring that concerns and recommendations have some authority in relation to the commission and the ministry.
This bill also proposes yet another committee: one to choose the commission. The criteria for membership on this committee is also outlined and appears to be composed of representatives of vulnerable persons. Once again we must protest the exclusion of family groups, unless of course family groups are included in clause 13(1)(b), those appointed by the minister. However, given the tenor of the bill it would seem that families will be disregarded.
Families represent the largest single group of care givers. They are unpaid, expected to perform their jobs prior to any training, given little access to training and available when no one else is. 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's perspective is critical. The provision for family education and training in clause 7(5)(b) is important. However, it is not enough. As families advocate for their ill relatives, the support and backing of a trained advocate is essential.
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 instead of creating another committee to provide advice?
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. Families have often been afraid of confrontation with the mental health system for fear that the negative impact of their complaints and concerns would be meted out on their loved one, either while in a care situation or through reputation when care is required again. Although no one wants to recognize that this situation occurs, families are only too painfully aware of this risk factor.
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Clause 7(1)(k) calls for the establishment of a code of conduct and for the minimum qualifications of advocates. We at FAME are interested in the criteria for this position. The individual who would take on this role must possess the skills of many professionals. Furthermore, the individuals accepted as volunteer advocates must be provided with the same training as paid staff. Volunteers must be held accountable for their actions under the terms of the act and be liable through the courts for negligence and/or unprofessional conduct. This is necessary so as to arrest any hasty or indiscriminate actions on the part of staff, paid or volunteer. Will families be trained and included under the category of volunteer advocate?
Training of vulnerable persons, families, social service and health workers etc will have to be an extensive, ongoing process, both to provide training to new individuals and retraining as legislation and policy changes. How will this training be provided? Who will administer the courses? What will this cost? How will resistance from special interest groups be addressed? Might I direct your attention to the letter from Dr Ingram published in the Toronto Star, June 11? Dr Ingram describes a potential horror story, as did other doctors when the committee was meeting to hear the presentation on the original bills.
What measures will the government take to train doctors and the general public on the realities of this legislation? Those of us who have had to live with the reality of medical displeasure with the Mental Health Act can look forward to another version of Dr Ingram's horror story, with the health care professionals insisting on the full range of paperwork ahead of any treatment and a passive resistance to compliance.
One final concern relates to the cost of implementing as extensive a program as this bill envisions. How will this be done, with what moneys in times of recession and government cutbacks? Without an implementation strategy outline, it's difficult to assess the cost and therefore the impact. Finally, in determining the number of advocates we wish to see that such criteria as multiculturalism, population size and geography be implemented. The remuneration of the committee will also be paid by fixed daily rate plus reasonable expenses, subsection 13(5). This method of administering the advocacy program seems rather generous in times of restraint. Perhaps a less costly method of salary plus approved expenses would be more fiscally responsible.
Bill 108 outlines the requirements for a judgement of capacity that takes into account the appreciation of the consequences of action or lack of action. It, however, does not provide any guidelines or qualifications for that appreciation. Although section 46 states that "A person is incapable of personal care if the person is not able to understand information...relevant to making a decision concerning...health care, nutrition, shelter, clothing, hygiene or safety," it does not outline any criteria for this determination.
For instance, if a person wished to be released from hospital, what standard of self-care would apply? If no arrangements had been made regarding shelter or nutrition, would the person's assurance that he or she would take care of that later be sufficient; would proof of some sort be required regarding current skills be needed; would refusal to submit to a voluntary assessment indicate competency or incompetency? Without guidelines for decision-making, it's difficult to assess whether this proposed bill is helpful or not for those attempting to work with and support persons whose competency may be fluctuating.
Although the bill clearly outlines power of attorney and guardianship for property and personal care, it's still unclear whether these sections would fall under the same application, whether they would fall into different jurisdictions or different people. It's 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.
We wish to express concern regarding the use of the word "force" as stated in paragraph 50(1)4. Within the context, force essentially implies the exercise of physical energy. If we substitute the word "action" it does not substantively change the meaning; rather it broadens it to include physical, mental and emotional persuasion.
Subsection 50(6) appears to be a lengthy, complicated process. From our experiences, individuals with a mental health problem have extreme difficulty maintaining the patience required to carry through these transactions. It is our desire to see the time frame streamlined to a seven-day registration period. The lengthy time involved serves to protect the individual; however, it may also work to his detriment. Continuing in clause 50(6)(c), the facts upon which opinions will be based must be set out. Will the assessors have clear guidelines? What form of compensation? Will it be OHIP-based? How will this be presented to the psychiatrist? Is it possible for a general practitioner to do this instead?
Under Bill 109, consent to treatment, as outlined in the Mental Health Act, is similar to what is being proposed in this act. The difficulties experienced by those implementing the existing legislation seem 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 or her delusional system, thus appearing quite rational. If the exhibiting behaviour were placed in context, ie, psychosocial history from previous assessments, if existing, and 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, ie, 6(1) "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 real understanding. Again, there's no benchmark to measure the individual's understanding of a situation. In other words, is this the kind of decision that this individual would make in normal circumstances?
It's been noted that the concerns about reversals of decisions written into the power of attorney will not supersede the existing document if the decision is made during a period of assessed incompetence, section 47.1(2). Within Bill 109, subsection 14(1) requires a definition of "best interests." Although it is necessary to remain flexible regarding various circumstances or the environment, the phrase as it stands is subject to individual interpretation. Likewise, the notion of severe suffering or severe pain, which would override consent, section 22(1), must be properly defined.
In developing comprehensive legislation to ensure protection of the rights of vulnerable persons, it would appear that some basic rights have been overlooked. For those individuals residing within an institutional setting, no protection from the hazards of institutional life have been developed. For instance, what protection does a resident of a psychiatric facility have against contracting AIDS or other communicable diseases? Residents also face situations of assault for which the only recourse is an after-the-fact criminal charge. If we are so concerned about rights, perhaps we should also consider the right to be ensured safe and adequate treatment.
This bill creates a bureaucratic nightmare regarding interpretation and implementation of policy. How will those in the social services field be made aware of their roles and actions within the scope of the proposed legislation and onwards? Where will the money come from for the training programs to educate employees? Furthermore, it is possible to envision a situation in which an individual receives inadequate care or attention as a result of the inability to locate the next of kin or obtain a consent to treatment.
Bill 110 is clearly a housekeeping bill intended to amend a vast range of legislation so that it is all consistent with the preceding three bills. However, we continue to question how all those who work within the range of legislation from the Drainage Act to the Mental Health Act to the Child and Family Services Act will be aware of the implications of the proposed changes. Will materials be developed for those 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 adopted 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 treatment in a clear manner.
The basis for this proposed legislation is clear, both as 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 a large onion: For each layer that is peeled away, there is yet another layer to peel. A system that becomes 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? We recognize that a great deal of thought and work has gone into the revision of these proposed pieces of legislation, but the net result feels like more procedure to cover less content.
The Chair: Thank you very much. Mrs Sullivan, you have about four minutes.
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Mrs Sullivan: I think you probably heard the presentation from the Metro children's aid society just before your appearance, and I think a number of the issues you have raised are also affecting that organization in terms of determining the relative balance between the right to civil rights advice and the right to health care, and attempting to reach that kind of balance through development of legislation that has heretofore been under the common law.
I wonder if you could comment, because you have gone through the three different bills, on your response to the various definitions of "capacity".
Ms Wallace: It certainly was interesting. That's part of the difficulty; that there isn't a clear enough definition or a single definition throughout that allows you to say, "Okay, here it is." So every practitioner you might go to, or every hospital you might go to, could say, "Oh, well, we're using this act and this is our definition, so you don't qualify" or "this doesn't qualify." For people who are looking for treatment particularly in crisis situations, which is when help of that nature is normally sought in mental illness, to be faced with a collection of definitions on whether they are competent or not competent exacerbates the situation quite dramatically. It's difficult enough going through the emergency wards, but to have to face a pile of different definitions on what constitutes competency I think puts people in a much worse situation.
Mrs Sullivan: The children's aid society also talked about the emotional effect and/or negative effect on young people who, in order to receive treatment, would have to be assessed as incapable. Do you see those situations in the families with patients you are involved with?
Mr Sande: Yes, definitely. From my personal experience, I think what it does is lower the individual's self-esteem to be judged incapable. Indeed, I see it as a real problem.
Mr Sterling: As to the part in your submission with regard to the role of the family and the advocacy role, are you saying a family advocate has to have the same degree of training and expertise as a professional advocate? Is that the view you're putting forward?
Ms Wallace: When we read the act and it talked about volunteer advocates, there wasn't any definition of who that would be or how one became one or what training would be provided for volunteers. But if there were going to be paid advocates and volunteer advocates, and presumably families would fall into the volunteer advocate category, surely to goodness we shouldn't set up a two-tiered system so that if you get a paid advocate you get professional, trained advocacy and if you get a volunteer advocate you get Aunt Hattie down the street.
Mr Sterling: It cuts both ways. One of the problems with trying to escalate the qualifications for an advocate too high is that you're probably going to take out the people who have the greatest interest in these individuals.
Ms Wallace: Excuse me. We weren't talking about qualifications for the job; we were talking about training. No, I wouldn't necessarily say that everyone who is an advocate has to have a law background.
Mr Sterling: I think the problem with the act -- and I don't know whether you have considered it in your submission or were considering it when you were drawing it up -- is that there's nothing that hauls the advocate into line, be it a volunteer advocate or be it a professional advocate of the commission. I think the accountability of the advocate is a problem with this act. If somebody is acting way out of line, the commission, which is biased, is going to make the decision as to whether the advocate is out of line. To me, there is no sense of justice to the family who considers that an advocate has stepped way out of line, or if somebody else, a health care provider, considers that an advocate has stepped way out of line and beyond his or her expertise, there's nobody you can go to in this act to have your grievance heard.
Ms Wallace: We did comment on that and we are concerned about that. We don't feel that in order to deal with an advocate behaving in a way that may be detrimental to a client, the client should have to go to court for redress. That's complicates and complicates and complicates a situation that shouldn't exist in the first place.
Mr Sterling: So you'd support a discipline committee made up of laypeople who were at arms' length from the commission or something like that?
Ms Wallace: Yes.
Mr Sterling: Okay. Thank you.
Ms Carter: I want to speak mainly to Bill 74 and advocacy. I think there's a basic misunderstanding here, and it's one we've had a lot throughout the hearings on this; that is, what the object is of these bills and particularly of Bill 74. It's a question of power. The object is to empower the individuals themselves, the persons who are vulnerable or whatever.
Now, most of the time the interests of the family or care givers or whoever and that of the vulnerable person are going to be the same, and there's no problem with advocates working with those people. That's been made clear from the outset and has been further clarified, I think, in the amended version of the act. But the bottom line is that sometimes even family and even care givers can neglect, ill-treat, exploit or simply not listen to and follow the wishes of the actual person, so I feel that has to be the basis of what we're doing here.
There are some other things that I think have been to some extent misunderstood. Advocates won't be an untrained horde, but they won't be legal experts either. They're not going to be lawyers. The training has been left up to the Advocacy Commission, which itself is going to consist of people with very, very close links with vulnerable groups. That is why we don't want it to be a bureaucratic thing; we want it to be something that comes from people who understand.
Volunteers can certainly be advocates. They won't be paid, but they will have to be trained, and anybody who sets themselves up as an advocate who does not have the certification will be subject to penalties; that you cannot make that claim unless you have gone through the requisite training, whatever it turns out to be.
Right at the beginning, you raised the question of the person who appears to change his mind when he's actually not capable and refuses treatment on those grounds. I think that has been thought of too in what is called the Ulysses clause, where a person can state in advance, "I wish to have a certain kind of treatment, and if, when I'm incapable, I say the opposite, you will disregard it," and that can be made to stick.
I also mention the articles by Jenny Ingram. It so happens that she resides in the same part of the world I come from, Peterborough, and we've had certain exchanges in the local press. I have met her. Jenny Ingram was herself under some misapprehensions, which were actually retracted in the Peterborough Examiner.
I also hope you have read the revised version of the act with the amendments in it, because I think that does answer some of the problems you're raising.
Ms Wallace: If you look at what I said about Dr Ingram's letter, what I asked was, how will resistance and special interest groups be addressed? In other words, both at the previous hearings and at the beginning of this hearing, there have been letters to the editor and a section -- I believe it was a big section in yellow in the Star -- outlining the horrors of four-year-olds refusing inoculations and that sort of thing. When there's that kind of resistance, the kind of response that happens with the enactment of legislation is not a positive thing.
There was resistance to the passing of the current Mental Health Act, and a lot of the psychiatrists -- certainly not all, but a lot of them -- have acted as if it's a burden, and the less they have to do about it the less they're going to do about it. So if we have more legislation that doctors are opposed to, how is this going to be addressed? We've already had the experience of it not being addressed adequately with the Mental Health Act. How will it be addressed with three new pieces of legislation? Is somebody going to go, doctor to doctor, around the province and say, "This is what it really is"?
Mr Gary Malkowski (York East): I appreciate your concerns as they relate to the omission of family participation, but we do have an amendment under clauses 15.2(a) and (b) and also subsection 15.3(2) which provide a role for family as chosen by vulnerable people. How do you feel about that amendment?
Ms Wallace: You have me at a slight disadvantage because I don't have the act in front of me. It has been traditional within the Mental Health Act to be able to list family as advocate, and the difficulty we've experienced with the Mental Health Act in that is that some doctors will recognize family as the appropriate advocate and some doctors won't, so who do you know who you're dealing with in the middle of a crisis? I mean, you don't go to hospital emergency with a collection of acts under your arm. Hopefully, you go with a medical health card and not much else.
It's a situation that says, "Sometimes you can be and sometimes you can't be, and I, as a medical practitioner, will make the decision on whether you're the right advocate or not the right advocate and whether I'm going to talk to you or whether I'm not going to talk to you." This is a situation that families face continually in dealing with the medical system.
Mr Malkowski: What would you recommend, then, to those who have no family and that kind of support system; what would you propose to help them?
Ms Wallace: For those without families?
Mr Malkowski: Yes.
Ms Wallace: For those without families, most people would have the opportunity to appoint someone they trusted, and if there is no one someone trusts to that capacity then obviously that can be dealt with by an advocate with directions specifically written out. The act does provide for that.
The Chair: Thank you, Mr Malkowski. Mr Sande and Ms Wallace, on behalf of this committee I would like to thank you for taking the time out this afternoon and giving us your presentation. Having no further business before the committee this afternoon we stand adjourned until 3:30 tomorrow afternoon.
The committee adjourned at 1733.