CANADIAN BAR ASSOCIATION -- ONTARIO
CONTENTS
Tuesday 23 June 1992
Advocacy Act, 1992, and companion legislation
Dying with Dignity
Marilynne Seguin, executive director
Martin Campbell, legal counsel
Nancy Mills, director
Canadian Bar Association--Ontario
Paul Milne, member, committee on Bill 108
Dona Campbell, member, committee on Bill 108
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:
*O'Connor, Larry (Durham-York, ND) for Mr Wessenger
*Owens, Stephen (Scarborough Centre ND) for Ms Akande
*In attendance / présents
Also taking part / Autres participants et participantes:
Sterling, Norman W. (Carleton PC)
Fram, Steve, counsel, Ministry of the Attorney General
Clerk / Greffière: Freedman, Lisa
Staff / Personnel: Swift, Susan, research officer, Legislative Research Service
The committee met at 1542 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 still in the second round of public hearings on the amendments to 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.
DYING WITH DIGNITY
The Chair: I'd like to call forward our first presenters, from Dying With Dignity. Good afternoon. Just a reminder that you will be allowed a half-hour for your presentation. The committee would appreciate it if you would 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 are comfortable, please identify yourself for the record and then proceed.
Ms Marilynne Seguin: My name is Marilynne Seguin and I'm the executive director of Dying With Dignity. I would like to introduce you to Martin Campbell, a barrister and solicitor with the firm of Beard, Winter who advises Dying With Dignity on occasion on certain matters, and Nancy Mills, who is with the firm of Mills & Mills and has recently come on the board as a director and officer of Dying With Dignity.
The first thing I would like to do is compliment the various people who have worked so hard. The 199 amendments are an awful lot of work. We support the bills, as we said in our previous brief. We still have a few concerns, however, but we will limit ourselves to mentioning one or two items.
We would like to emphasize that the support shown between care givers and family members to all Ontarians receiving health care is very credible and pleases our organization immensely. Our particular concerns, however, are related to those who are terminally ill.
Martin, would you like to comment?
Mr Martin Campbell: I trust you have the letter we sent to Norman Sterling. This should be before you. Attached to that letter is also a one-pager with the word "Harm" at the top. I thought we could perhaps go through this letter and then reserve most of our time for questions.
In the letter of June 12 to Norm Sterling we made perhaps three basic points on the first page. Our first comment is the complexity of the legislation, which in terms of both the policy and process and the language used to define that process in our view remains a problem. All we can do there is urge you, wherever possible, to move to as plain language as possible and to find ways to streamline. That really goes a bit beyond our specific interest, however, but it's a general comment which I think we feel comfortable making.
Second, as Marilynne mentioned, we are strongly in support of the amendments contained in section 63 of Bill 108, which requires guardians to take into account values and beliefs of the person under their care and to foster regular personal contact with the incapable person, family members and friends. In our view, this is a critical and very valuable amendment, because it emphasizes the need for full family support and understanding of an individual person.
Third, we have a technical issue we're a little concerned about. Here, even though I'm a lawyer and know something of the health area, I defer to your own legislative counsel and counsel for the ministries involved. As we read it, we fear there may well be an area of uncertainty respecting the use of the word "treatment" and the possible distinction between the word "treatment" and personal care. We've set that out in some detail in our letter. I don't think there's much point in my reading that, but I ask that you put that issue before legislative counsel and before counsel for the Ministry of Health to see whether our concerns are valid. If they are valid, then there're some suggested changes in the middle of page 2. Make sure that the concept of health care is clearly included in the concept of treatment.
Our fourth issue is also set out on page 2 and has to do with the notion of harm. Here we are really dealing with a philosophical or conceptual issue which concerns us. If you turn to the single sheet of paper you'll see a statement of how the word "harm" can be perceived. The context is paragraph 14(2)(c)3 of Bill 109.
We are concerned that the use of the word "harm" would preclude action or lack of action on behalf of someone who chooses to forgo treatment which is available, and the concept of "harm," as traditionally interpreted in our society, means death or further disability. We would like to make certain that the word "harm" is drafted in such a way that it would be clear that a person who has chosen to refuse treatment is not going to be the subject of "harm." That, again, you can put before legislative counsel and solicitors for the ministries and say, "Is this concern justified?" We would value the amendments in that area.
Those, very briefly, are the several points we felt we would make orally. We've tried to cut our presentation to you down to the bare bones. The overriding concern is that the legislation be passed as promptly as possible because there are many people who require a legislative framework to support and buttress the decisions they have made in advance directives or in living wills. Those are our comments; we are prepared for questions.
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Mr Alvin Curling (Scarborough North): As you mention at the beginning, and rightly so, with any kind of a bill I like to see it in rather plain language so I can understand it. Some of us are not privileged, like some of my colleagues, to be lawyers, who speak in different languages I don't understand. Since these things are made for lay people -- if you want to call them that -- they should be understood. So I welcome that comment you made.
You also mentioned the fact that there were many amendments to these and you welcome those amendments. The last point you made, that you hope these things are passed rather quickly. Don't you think that since the essence of the bill has changed dramatically because of the 200 amendments, one has to look rather carefully to see, as it changes, that we have a bill -- which I think is needed so badly -- that we go through it rather carefully? I know it's so long awaited.
Mr Campbell: Perhaps I should change the word "quickly" to "deliberate speed" or "expeditiously," but clearly not forgoing the time required to study the bill thoughtfully. We support the legislation and support the notion of passing it with due deliberation. But clearly it's better to get it right than to have to come back two or three years from now and make further amendments. So, subject to that, I agree with you: Get it right.
Mr Mark Morrow (Wentworth East): I want to thank you for appearing before us today. I have a question about your fourth concern on the harm clause. I'm going to read paragraph 14(2)(c)3 to you: "Whether the benefit the person is expected to obtain from a treatment outweighs the risk of harm to him or her." You say you would change that paragraph. How would you change that?
Mr Campbell: Specific language? I'm not really prepared to give you specific language. That's very much the province of legislative counsel and solicitors for the ministry. But our concern is the concept of risk of harm and it might help if members have that section before them. You'll see our point. The whole section deals with the giving of consent on an incapable person's behalf. One of the criteria set out in subsection 14(2), in defining the best interests is, as we look at the next page, "Whether the benefit the person is expected to obtain from the treatment outweighs the risk of harm to him or her."
What we would like to see is wording either in that section or in a further subsection which suggests that, in appropriate cases, the true harm to the patient is the prolongation of life and treatment in situations which are clearly hopeless or where unnecessary pain or suffering is caused. I defer to Mr Fram or to any other counsel who is knowledgeable in greater detail than I am, but our concern is a decision made in the best interests of the patient should encompass and include a decision not to give treatment in certain circumstances. Our concern is that the word "harm" suggests a value system where death is to be postponed or delayed as long as possible.
Mr Morrow: Thank you very much.
Mr Stephen Owens (Scarborough Centre): I'm sorry I missed your presentation. However, I did speak quite strongly in support of Mr Sterling's bill some time ago. I believe with all my heart in the process of death with dignity and I outlined some personal experiences with my own family members, as well as volunteering with terminally ill patients, that convinced me even further that death with dignity is the way to proceed.
On one of the issues you've raised, and I guess along with your comments, my concern is that if a person has a living will but presents at the emergency for treatment for a non-related problem, what suggestions would you have for administration so that the wishes of that patient could be honoured in line again with the comments that you've just made?
Mr Campbell: That's a very difficult issue because there are many different scenarios which can apply. Let's assume that the person presents at the emergency and he's fully competent and capable of giving instructions to a physician. He might, at the moment of admission and the stage at which where he's receiving treatment, discuss orally what he wants and what sorts of treatment he wishes to have and what sorts of treatment he does not wish to have. The physician, if prudent, would make a note of that and treat accordingly. If the patient is presented in an unconscious state with no one around, assuming an ambulance attendant has brought him in and there's no easy way for a physician to find out the nature of the treatment which he doesn't want to have, then you have a whole different scenario where, under these emergency conditions, the physician should treat and care and maintain or stabilize the patient and then make whatever inquiries are necessary to satisfy himself or herself that the patient is getting the right treatment.
A third scenario would be where the patient presents himself, discusses a course of treatment and then in the course of getting treatment something else arises which he may or may not have contemplated. Again, if he's conscious or unconscious there's a whole range of issues which flows from that. So you have to be quite precise about the facts of the situation which you set out.
If you arrive at an emergency room with your living will in your hand and the living will sets out a number of items or conditions to the giving of care -- for example, "I do not want to be on a resuscitator; I do not want CPR" -- and treatment is commenced and for some reason or other the patient has a heart attack or his heart is arrested, then clearly the physician and the patient are in what might be called a terrible bind, because it was never contemplated at the start that the patient would have a cardiac arrest during the course of getting treatment. I doubt very much whether legislation can really cover all of those scenarios. I also doubt very much that the physician would in those situations be authorized to just blindly, without consulting with someone able to give substitute consent, continue a course of treatment never contemplated by the parties. So it's a very, very difficult area.
Mr Owens: Just one last comment. In terms of your letter to Mr Sterling, I particularly appreciate the comments you've made in the fifth paragraph on the first page with respect to section 63 and the relationship that should be developed between the guardian, the patient and the family. As part of the death process, it's my experience that this is in fact an invaluable aid to the person who is dying and certainly is a level of comfort to the family and to those who are at or involved with the death of the patient.
Mr Norman W. Sterling (Carleton): Had the Ministry of Health or the Attorney General responded to their concern over the ambiguities?
Mr David Winninger (London South): Since we don't have the parliamentary assistant to the Minister of Health here, perhaps I'll ask Mr Fram to respond to that.
Mr Steve Fram: I've looked at the provisions they referred to and I really don't see an ambiguity. I think where there are expressed wishes a guardian, a substitute decision-maker or an attorney for personal care is bound by section 63 to follow the known wishes. Similarly, with respect to the Consent to Treatment Act, we don't get the best interests unless there is no known wish that's applicable to the circumstances. I think both acts cover the situation where the wish is expressed and clear and you don't get to a situation where you have to apply best interests if the wishes are known.
Mr Campbell: May I comment? Our concern may be a narrower one and it is indeed really a technical concern. I must say that the letter which was seen by Mr Fram only a few minutes ago -- and so I would request, to be certain, it be run by legislative counsel to see. Our concern was the narrow one. Personal care is defined, treatment is defined and we were a little concerned that "personal care" may not be sufficiently specific to include health care. It's a fairly narrow technical point. I defer to Mr Fram for the time being, but I think it should be followed up by legislative counsel.
Mr Sterling: I'm sorry for being late. I was caught up in the Legislature. You mentioned in your letter to me that you're concerned about the complexity of the legislation. Are there any suggestions you can make to the committee -- I don't know if you did that before I came in -- as to how we could unravel it?
Mr Campbell: The complexity in legislation -- don't misunderstand this -- is more complicated than it seems. There are two aspects of complexity. The first aspect is the complexity of the policy itself and the procedures and the practices which are set out. The second aspect of complexity is the language which is used to express the policy and procedures. You have to be very careful, when you have a complaint about complexity, to focus on both those issues.
With respect to both of those issues, we do have some concerns. We haven't set them out in detail in our letter because we feel that, complex as it is, it should still proceed in some form or another because there's a clear need that has to be met. But in terms of offering a positive comment, there are three or four levels of complexity I think can be addressed.
There are at least three ministries involved in the administration of this network of statutes, and that itself leads to administrative and other forms of complexity. There will be less incentive, if I can be bold enough to say this, for a particular minister to take responsibility for the whole package. That's perhaps the threshold comment on complexity.
The second issue of complexity is the need to solve the particular problem. The problem I see is that this legislation is going to have to be interpreted by people who are arriving in a hospital setting when there's a fair amount of stress to begin with. It will have to be administered in large part by physicians and health care practitioners also operating under stress, and so it seems to me that you want to have both practices and policies which respond to high-stress situations.
The complexity here is quite profound. For example, in looking at a substitute decision-making scenario you're looking at I think 10 different checklists one must go through to see who could give consent for another, and then five criteria which have to be applied. Think of that in the setting of a confused family possibly speaking a language other than English or French, trying to get a sense from a rushed and harried physician on how they're going to get treatment.
You have the situation where people who are elderly are making decisions in family settings which are quite tense, and here there is a fairly sophisticated legal set of hurdles to overcome.
Our basic view would be to look again at perhaps the Manitoba legislation, which tends to be drafted in a way which seems to me to be a little more easy to understand and seems to set out procedures and policies which are a little simpler.
On the other hand, I must caution -- having myself from time to time been involved in legislation -- that you cannot make it too simple. In trying to oversimplify you can create 1,001 problems which the judges have to sort out, in which case you're not quite sure where the policy's going to end up. You have a very fine line between making the legislation sufficiently complex but not overly complex. I would certainly look to the Manitoba legislation.
The Chair: No further questions or comments? I'd just like to advise you that in your letter to Mr Sterling you asked where you can proceed from here. I realize that time has been short since the amendments have been tabled, so if you do have anything you want to express to the committee, we'd appreciate your sending in a written response any time during the public hearings.
Ms Seguin: Thank you very much for allowing us to appear today and to again put forth our point of view. We do appreciate the legislation and all the work that's gone into it. We're a little anxious for things to happen.
The Chair: On behalf of the committee I'd like to thank you for taking the time out today and giving us your presentation.
Just a reminder that legislative research now has the comparison summary of recommendations and the proposed amendments to the bills available and they'll be handed out to the committee members. To allow time for our next presenters to catch their breath when they get here, we'll now recess for 15 minutes.
The committee recessed at 1604.
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CANADIAN BAR ASSOCIATION -- ONTARIO
The Chair: I call forward our next presenters, from the Canadian Bar Association. Good afternoon. Just a reminder 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 Paul Milne: My name is Paul Milne. I'm a member of the committee that was established by the trust and estates section of the Ontario branch of the Canadian Bar Association to examine the property aspects of the proposed Bill 108. Ms Dona Campbell is with me. She is also a member of the executive and was on the committee that examined the personal care aspects of the legislation.
We thought today, to follow the legislation, we would start with the property side first and finish with the personal care side, if that's acceptable to the committee.
After reviewing the proposed amendments, we concluded that it really is a final piece of legislation in the whole map of legislation whereby an individual will be able to plan privately from incapacity through to death and then regulate the actions of executors and trustees. We saw that as a very good thing and wanted to start out our presentation by saying that we really do feel it's a good piece of legislation.
We also believe it's important that the public safety net that's been established be there for protection of the individual grantors, particularly in their incapacity, and it be in effect there at every stage of the process through other legislation.
The concerns we want to talk about today relate to the need to establish a private system that works and is efficient, effective and affordable. The suggestions in our brief relate to these concerns, and I believe you all now have a copy of the brief. It's our belief that the burden on witnesses established by the legislation, especially strangers and staff in professional advisers' offices, must not overwhelm or frighten them. Continuing attorneys and guardians of property must be able to discharge their duties with a reasonable amount of effort; otherwise we're concerned they won't take on the job.
We framed our suggestions in our brief so as to reduce the burden on witnesses and attorneys without, we believe, jeopardizing the safety net protecting the individual grantor. We ask, as we review the points we feel are important, that you wear the hat of the witness and of a continuing attorney and try to view how you would conduct yourselves in these capacities.
First of all, the matter of subjective and objective standards of care: In our previous submission, we reviewed the concept of authentic decision-making in Bill 108, which required encouragement of participation by the incapacitated person, which we felt was not compatible with the general standard of care imposed upon a substitute decision-maker.
We believe that the objective standard was the appropriate standard, namely, one independent of the perceived desires of the incapacitated person. That's the appropriate standard that should be imposed so that the obligations of the continuing attorney or guardian of property under the legislation would not be so difficult to discharge that individuals would not be willing to accept the position. We are also concerned that the notion of authentic decision-making and consultation will place a time burden on a person acting in the capacity as a continuing attorney or guardian of property.
We previously asked that subsections 32(2) and 32(3) be deleted for these reasons. We note, in your proposed amendments, that you've added to these sections, which remain in legislation, new subsections 32(3.1) and (3.2). Subsection (3.1) requires the attorney to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person. We feel, if you take our earlier comments with the addition of this further requirement, that it will add to the burden that people will be concerned about. These are people who are acting as continuing attorneys.
Subsection 32(3.2) requires the guardian or attorney to consult from time to time with supportive family members and friends of the incapable person from whom the incapable person receives personal care. We believe that is reasonable, because a prudent attorney would do so in any event. We're therefore suggesting, for the reasons I have mentioned, that subsections 32(2) and 32(3) of Bill 108 be deleted, as well as proposed subsection 32(3.1). We have no objection whatsoever to subsection 32(3.2).
As far as the duty of care is concerned, as a group we felt quite strongly, in our previous submission, that this duty should mirror the provisions of the draft Trustee Act. I know you've all been through that. It was our concern that sections in different statutes that deal with the same functional matters should be worded identically to avoid uncertainty and the unnecessary social cost of resolving the uncertainty.
We are also concerned that the point of distinction in Bill 108 is whether or not you receive compensation, which then results in a higher level of duty, while the draft Trustee Act makes the possession by a fiduciary of a relevant level of expertise the point of distinction. We believe strongly that it's not compensation, but expertise for which one should be responsible. Again, to mirror our suggestions previously, we ask that you reconsider subsections 32(4) and 32(5), as we previously requested.
In terms of the matter of witnesses, under the present powers of attorney legislation, as you all know, only the attorney and the spouse of the attorney are excluded from acting as witnesses. We don't have any problem with the class being extended, as the legislation has, but we ask that you view it from the perspective of obtaining witnesses to sign powers of attorney, which of course is very important. You've increased it to two witnesses -- we have no problem with that -- but the expansion of the class means that for many of us who are attending in institutions -- perhaps many of you have experienced that -- the classes are so wide that we're concerned that even the policies of a number of our institutions will now need to be changed.
For example, the policy in a number of hospitals of which the members of our committee are aware is that nurses cannot act as witnesses, but that a designated individual or individuals in the hospital can act as witnesses. The reason for that is fear of suit.
The previous submission suggested that paragraphs 4 and 5 perhaps be deleted. Paragraph 4 relates to employees of a facility where the grantor is a boarder or receives personal care, and paragraph 5 relates to parties to a proceeding to which the grantor is also a party. We also ask that the definition of "relations" not be so widely drawn. It appeared to us that it covered all relations. We saw a great difficulty not only in the problem of mistakes being made with distant relations, but also in the problem of it, again, limiting the available group of people to act as witnesses. It's our feeling that if those classes can be allowed to witness, it will facilitate the signing or the witnessing of powers of attorney. Again, this relates only to individuals.
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As to the statements of opinion as to competence, we feel very strongly that those statements should be deleted. I know you've heard this a lot. Our concern is that if there is a problem because of the expansion of the class of persons who can't witness documents, coupled with the need to inquire in the prescribed manner as indicated in the amendments as to competence, we're going to have a very difficult time, especially in urgent situations, finding witnesses.
We canvassed the members of our committee, we talked with other lawyers and we all believe that we really can't ask members of our staff to make these kinds of judgements. Our experience in the past is that generally speaking, professionals have made these judgements and they usually have a standardized set of questions for determining capacity. We believe witnesses will be frightened and perhaps overwhelmed if they have to make some kind of a judgement as to competence or capacity.
We ask that you put your hat on as a witness and consider whether you would be willing, for nothing, as a stranger, to witness a document which has that requirement. If you balance that against the need for the individual, quite often in an emergency, to sign a power of attorney that is going to become a continuing power of attorney, we feel it's appropriate that this statement not be required.
Subordination of other legal obligations: The legislation provides that expenditures necessary to satisfy the incapable person's other legal obligations are not to be subordinated to expenditures needed to support, educate and care for the incapable person and that person's dependants. Again, we feel that is wrong. We are concerned that if subordination occurs, credit may not be available to elderly people if there is some fear of lack of capacity at some future date. And more important, we still believe that if a creditor moves, obtains judgement and levies execution under the Execution Act, the whole import of that section will be defeated in any event. We ask that you give that further consideration.
As to authorized expenditures for gifts, loans or charitable gifts, again, I'd like to bring you back to the burdens placed on attorneys and continuing attorneys and guardians. Bill 108 authorizes expenditures for gifts, loans or charitable gifts only if the property of the person will remain more than sufficient to satisfy the requirements of support of the incapable person and his or her dependants and of legal obligations.
We asked before that the word "will" be dropped and "reasonably probable" be the words that are inserted in place of "will." Frankly, we don't see how an attorney or guardian can make a judgement literally for all time that the property will be satisfactory for these purposes. We believe they will be forced in many cases simply not to make the gift, loan or charitable gift.
As to protection of innocent third parties, section 37 has been deleted, which we commented on. We suggested expansion of that section and development of a sheltering technique. Again, we tried to view our comments today from a practical nature. All of us on our committee have experienced time and again the concern of, in particular, banks and others on their protection when acting under a power of attorney. We ask that you give consideration to the sheltering technique we proposed previously, as we believe it's workable.
Concerning the matter of powers of guardians to complete property transactions after termination of guardianship, we believed previously, and we believe now, that they were ill-conceived powers. For this reason, our system works well. When death occurs, personal representatives have the right and power to represent the estate or to act on behalf of the deceased's estate.
Quite often that may mean questioning transactions which were commenced before death and not completed because of changed circumstances. If you allow a continuing attorney, for example, to complete those transactions, we see the possibility of conflict. Our system works and we believe it's important that the right and power of a continuing attorney or guardian of property cease on death.
We'd like you also today to consider the possibility of multiple continuing powers of attorney. When we read the new proposed sections 10.1, clause 11(1)(a) and clause 11(1)(c.1), along with clause 11(1)(d) of Bill 108, we concluded that the combination of those sections prohibits multiple continuing attorneys. I will say to you that we're all learning how to use powers of attorney more effectively and the practice varies widely, but we see the legislation as being very important to the development for estate planning purposes and succession purposes, and I'd like to give you some examples.
In a medical office, a medical doctor will very often give a power of attorney to an associate and will appoint that associate as a special executor only for the purpose of maintaining and sale of the practice. Another power of attorney will be given to the doctor's spouse and the spouse will generally be appointed as executor. That is one planning tool for someone with a licence that can't be transferred to a spouse.
If we have multiple continuing powers of attorney, and that's when these powers of attorney are used in one's incapacity, it will allow that planning technique to continue.
One of the other lawyers on the committee gave an example of a continuing power of attorney for literary purposes where one has a literary agent. Another lawyer has traditionally been concerned about the phrase many lawyers use in a power of attorney, that a substitute comes into place upon death of the attorney or such things as that person becoming incapable. Some, instead of getting into that problem, simply prepare a secondary power in favour of the children.
For those reasons, we ask that multiple continuing powers of attorney be allowed in this legislation, and we direct you to subsections 17(8) and 24(5). This isn't in our submission to you, but for example, in subsection 17(8) of Bill 108, "The public guardian and trustee may certify that two or more applicants are joint statutory guardians of property, or that each of them is guardian for a specific part of the property." So the legislation really already does contemplate appointments for specific types of property.
As far as the replacement of the public guardian and trustee by family members is concerned, we understand your point and we really don't disagree with it as long as we, and I think the members of the public, are assured that the office of the public guardian and trustee will be well funded so the vetting of the suitability of the family can occur quickly. In one's incapacity, you need to be able to act quickly in the majority of times.
If that assurance for whatever reason is not available, we ask that it be reversed in accordance with our previous submission, namely, that they initially be deigned to be suitable, again with the public guardian and trustee having the right and entitlement to determine that a family is unsuitable. We also ask that the same rule apply to a nominee of the family.
Finally, the application of subsection 31(1.1) to attorneys: Right now the subsection refers to property of "an incapable person," and it's a requirement to provide information and deliver property of a grantor to his or her attorney. We agree with that, and we'd like to suggest that this new proposed amendment be expanded to include attorneys also, so the information and property will be delivered to attorneys.
In conclusion, we'd like you to consider, if you will, what it will be like finding witnesses, what it will be like acting as a continuing attorney or a guardian of property and that you balance that with the needs of the individual who wishes to grant a continuing power of attorney to be able to find witnesses and individuals who will act.
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Mr Sterling: I realize the time has been relatively short for you to consider the amendments. Are you still considering the legislation or have you pretty well finished your analysis of the amendments?
Mr Milne: We've pretty well finished, because we believed this was the last opportunity to speak with you.
Mr Sterling: So you're focusing on the witness at this point. Is it felt that these protections are absolutely necessary? The one he is talking about, for instance, the staff of an institution: I believe they're excluded by subsection 10(2) from being a witness of a power of attorney at this time.
Mr Winninger: The short answer is that we feel these protections are required. I was going to put some questions to the witness myself, but --
Mr Sterling: You go ahead.
Mr Winninger: I think your concern expressed first of all with regard to subsections 32(2) and (3) and the new subsections that were added really is one of judgement of value. I think the government felt it was more important that incapable people be involved in the guardian's decision-making than to say, "Well, it's going to mean added cost; it's going to mean added inconvenience to the guardian." I guess you and we will have to disagree on that particular issue.
With regard to your concern about section 10 and the witness having to make a declaration of competence, I'm advised by Mr Fram that the kind of declaration that's been made is simply one whereby the witness indicates whether there was something to indicate lack of competence. There's a presumption that the donor of the power of attorney has competence, but if something struck the witness at the time that would indicate otherwise, then that witness would have to so declare. That formality, we feel, is an important one to ensure that only competent donors are granting powers of attorney.
I know we don't have time to deal with all the points and we might be able to talk later, but the other point you made about paragraph 39(4)1 in regard to charitable gifts -- at first I found your submission persuasive, but in discussing it with Mr Fram, I'm convinced that we want to ensure the ultimate degree of caution on the part of the guardian here. If there's a shred of doubt that there won't be enough in the fund to look after the incapable person, then that guardian has to assume the charitable gifts can't be made. If we were to go your route and include the words "reasonably probable," it would create a lot of uncertainty. We feel it's far better for the sake of certainty and preservation of the fund that even if there's a shred of doubt, the guardian will avoid paying charitable gifts.
Mr Milne: We weren't sure of your perspective in that regard because we felt the same way. We felt that in the vast majority of cases there would be a shred of doubt so there wouldn't be charitable gifts being made. If that's your perspective for the legislation, then I understand it. We felt your perspective, perhaps, was not that strong because of the other sections. Is it possible to ask you a few questions about the matter of the competence?
Mr Winninger: I would just indicate one other point: that we'll look at the issue of whether these earlier sections and subsections in combination might work against the existence of multiple continuing powers of attorney. Because we've just received your submissions, we haven't been able to reach any conclusion on that.
Mr Milne: We appreciate that.
Mr Winninger: I guess I'm in the hands of the Chair as to how he wants to deal with it.
The Chair: If Mr Fram would like to respond.
Mr Fram: Sure.
Mr Sterling: Before the question, I think Mr Milne had a question about the competence.
Mr Milne: With witnesses, whether you reverse it, Mr Fram, or whether you leave it in its present format -- I can tell you my own experience, and perhaps members of the committee have had a different experience. The members of our committee all had the same experience in that asking anyone to simply witness a power of attorney, if he or she is a stranger -- and I outlined to you the rules we know of in some institutions -- is quite a traumatic event, and all the person is doing is witnessing a signature.
As we now move into the new scheme, it was our belief that we all concluded we couldn't ask members of our staff to do it. We don't hire them to make those judgements or, in reverse, to watch for something that might indicate incompetence, because then they'll have to make personal decisions based on your prescribed manner or on their own experience as to it. We see it as a very serious matter.
Mr Fram: We -- this went back to the advisory committee -- found, especially with property, that the most concern was about having capacity at the point of granting the power. The committee explored everything from having a lawyer's statement and a physician's examination, and in the end we concluded that the simplest method really does impose obligations on a witness. We hope to make the obligations simpler by putting some questions in the form of a procedure to evoke the yes or no, but again, it's important to filter out -- that's why the list of people who are excluded is quite lengthy, and it's a matter of judgement. Every government will draw that line somewhere else. That's where the committee drew the line, and the government accepted the committee's line at that point.
We're going, as you said, from a point where anybody but the attorney or the attorney's spouse can be a witness -- one witness required, no statement -- and we've seen, if you talk to the Advocacy Centre for the Elderly or to the public trustee's office, the problems that creates. Maybe we don't solve them, but that's the way we attempted to address it.
Mr Sterling: Having practised law for a period of time before I got here, there's a real, practical problem here in that you're going to cause a significant amount of increase in terms of the price it's going to cost to have a power of attorney drawn, because you're going to have to get somebody from outside, I presume.
Mr Milne: Our belief is that we're going to have to take another lawyer -- to use my occupation as an example -- in our office to a home or to a hospital, whatever, to sign him, because right now it's very difficult to get a witness under the current regime. We don't believe we'll be able to get people to witness under the proposal.
Mr Fram: In the easiest case you'll get the neighbours. Where people have lived in the same place for the same time and exhibit the same behaviour, you'll get the neighbours to witness.
Mr Sterling: That's the easiest case, but there are lots and lots of other cases as well.
Mr Fram: In the most difficult case you'll get an assessment to satisfy the witnesses. You'll have a capacity assessment where there is doubt. That's done today, in those kinds of cases, by prudent practitioners.
Mr Winninger: I think you admit, though, that there has been some difficulty in the past and at present. I can remember trying to get nurses to witness powers of attorney, and it was like pulling teeth.
Mr Sterling: You're substantiating his objection.
Mr Winninger: No, what I'm saying is that if it was difficult before, it's not going to change things that much.
Mr Sterling: Oh, no, he's saying that it is. You may have cajoled a nurse into doing it before, but that's going to be impossible now. The nurse is excluded.
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Mr Winninger: It's just an extra step, that's all.
Mr Sterling: Well, an extra step which is going to double the cost of doing business for the citizens of Ontario to have it done.
Mr Winninger: You don't know that, do you?
The Chair: Further questions or comments?
Mr Curling: Am I understanding then that you're saying you identify that there's a problem in the requirement of a witness, and although you are identifying that, there is nothing you can do about it, while it is pointed out that it is difficult to get a witness because of the requirements? Isn't this now the time to sort of make it, I don't want to say "simpler," but make it more practical for someone to require a witness?
Mr Winninger: Perhaps I could ask, since we're asking you questions now, what percentage of powers of attorney are executed at your office as opposed to a nursing home or a residence.
Mr Milne: I would say -- I'm just guessing -- maybe 70%, because most people now sign them when they prepare a will. It's part of that process.
Mr Winninger: Exactly. So it's a problem, but it's not an insurmountable problem, since the large majority are signed at the office, where you're going to have legal or paralegal staff right there anyway to witness.
Mr Milne: Our concern is not so much in our office because, for example, in our office there are enough lawyers that you can find someone else and not place the burden on our staff, which we wouldn't do. Our concern is more the situation of the urgency of signing a power before an operation, which we rush off to hospitals to do, to attend in one's home and that sort of thing. It's the other 30%, or whatever that percentage is, that is our greatest concern.
Mr Winninger: I don't want to prolong it, but I can remember even as an articling student having to traipse along with the lawyer to witness the power of attorney at the hospital. That's probably not going to change.
Mr Sterling: Is there anything in here about the competency of witnesses?
The Chair: I'm certain that our witnesses are quite competent. Further questions or comments? Seeing none, Mr Milne, Ms Campbell, on behalf of the committee, I'd like to thank you for taking the time out this afternoon to give us your presentation.
Mr Sterling: We're only halfway through, aren't we?
Ms Dona Campbell: You've heard only Mr Milne.
The Chair: Oh, we're only halfway through. Sorry about that.
Ms Campbell: Mr Milne spoke to you concerning only the property issues and he confined his comments to Bill 108. I will be addressing the personal care issues in both Bills 108 and 109.
In general, my committee was pleased with the proposals for amendment to the legislation, but we found that concerns addressed in our earlier submission to you had not been looked at and that new concerns were raised by the language of the amendments themselves.
I've provided a further written submission to you and I want just to highlight some of the difficulties we perceive with the legislation, as amended. I want to deal first with Bill 108, which is the Substitute Decisions Act. We find the criteria for triggering a finding of incapacity under this bill quite troubling.
We find the criteria for triggering a finding of incapacity under this bill quite troubling. Section 46 would find a person incapable of personal care if that person is unable to understand information concerning health care, nutrition, shelter, clothing, hygiene, safety. It is our view that the inclusion of subjective criteria such as nutrition, clothing and hygiene evidences a failure to tolerate and respect different standards that are exhibited by different individuals in our society, and we are very concerned that these particular criteria could permit unnecessary intrusion on the rights of individuals.
Furthermore, we're concerned as to the standard for determining capacity under Bill 108. Now, under the Mental Incompetency Act, incompetence must be proven beyond a reasonable doubt, but that act is going to be repealed by Bill 110. Because there is no standard of proof in 108, incapacity will now be established on a balance of probabilities. While this may be sufficient in an acute care situation, we really question whether a balance of probabilities is an appropriate standard for imposing a substitute decision-maker for the long term.
We also remain concerned as to the complex requirements for creating or revoking a power of attorney for personal care. Further complexities have been introduced by the amendments, rendering the involvement of a lawyer almost unavoidable. It is our view that the appointment of a proxy for health care decisions should be encouraged by a simple procedure, far simpler than that set out in the bill, one easily understood by the public. While the involvement of a physician might be appropriate in drafting these documents, it should not be necessary to resort to a lawyer to ensure that the documents are properly completed.
Minor irregularities appear to render these powers invalid altogether. In our view, it would be preferable if the power is assumed to be effective unless proven to be defective. That is, we feel that minor irregularities should only render the power voidable, not void in the first instance.
Something we didn't address in the written submission was new section 50.2. Section 50.2 relates to the effective date of the resignation of an attorney who has acted under a power of attorney for personal care. Resignation will not be effective until written notice has been given to specified persons, that is, to the grantor, to other attorneys named under the power, to any substitute and to the public guardian and trustee if the power is validated or has been accepted for registration under section 50. We question why resignation has been made so difficult for these attorneys.
We note the registration process introduced by new section 50, which has been referred to as the Ulysses clause. We understand that this provision was introduced in response to concerns expressed by psychiatric patients, that decisions made by them while capable be enforceable as expeditiously as possible during a period of incapacity. In our written submission we set out specific concerns we have as to the implementation of that section.
I would now like to look at Bill 109, which is the Consent to Treatment Act. The first version of that draft legislation provided that there could be no treatment without a valid consent, but this language has been changed and a new duty has been introduced requiring the health practitioner to ensure that no treatment is given until an appropriate decision-maker has been found. We question the appropriateness of imposing this kind of watchdog duty on any health practitioner.
We further note that it is not at all clear who the health practitioner is going to be for purposes of this act. The provisions appear to ignore the fact that many practitioners could be involved in the care of any one given patient. Which one is going to bear the burden of this supervision? Furthermore, in many cases, particularly in an emergency situation, a consultant will be brought in to make the diagnosis, hence proposing the treatment, and will thereafter have no involvement whatsoever in the treatment of that patient. Is it really appropriate that this practitioner bear the responsibility of ensuring that no other person perform treatment?
We have concerns also regarding a return to capacity by a patient. Normally such a patient would simply resume decision-making on his or her own behalf, but this is not the case if a guardian has been appointed under the Substitute Decisions Act or if the attorney is acting under a validated power.
Consider the example of a comatose patient who simply wakes up. If a health practitioner has determined that this patient is again capable, why shouldn't the patient resume making health care decisions, regardless of the existence of a guardian or a validated power?
We are still very concerned about a health practitioner's protection from liability. A standard of good faith is applied to the acts of the public guardian and trustee and all other substitute decision-makers. However, in order for a health practitioner to be protected from liability, he or she must have reasonable grounds for believing the consent to treatment or the refusal to consent upon which he or she is relying is sufficient.
Why is a standard of good faith not sufficient also for the health practitioner? We're very concerned that the very imposition of a different standard for health practitioners will make health care unnecessarily adversarial, that it will invite litigation to determine what is reasonable in particular circumstances.
The Chair: Any comments or questions?
Mr Sterling: Ms Campbell, before you go, do you have anything you would like to get clarified in the amendments from the Attorney General's people in terms of intent or anything like that?
Ms Campbell: We were rather confused about section 50, which is the Ulysses clause, but having read the excerpts of comments, I think it was by Steve Fram, we understood why it was introduced but we don't think it's limited in that way. We in fact endorse the Ulysses clause, but we think it may have much broader application and we were somewhat concerned by that, but I did address that in the written submission.
The Chair: Any further comments or questions?
Mr Sterling: I'd really like to thank the Canadian Bar Association for putting so much work into both the presentations. I really appreciate it.
Ms Campbell: I did have one comment.
The Chair: Go ahead.
Ms Campbell: I wanted to bring to your attention the provisions for living wills that the public is so interested in. We've noted before in other submissions that one of the maritime provinces has a bill regarding living wills that's one page long. Manitoba has introduced draft legislation in this respect. Their legislation is again very simple and very short. The very length of Bill 108 concerns us very much because people just won't understand it, and it's our concern that that means they won't do it, but they want it.
Mr Sterling: I could have said those words myself.
Mr Winninger: I think Mr Sterling was very impressed with what the government tabled, though. He did say that at one point.
Mr Sterling: At one point, yes.
The Chair: Any more comments or questions? Seeing none, I want to thank you very much for appearing before us today. Seeing no further business before us, we are now adjourned till the call of the Chair.
The committee adjourned at 1703.