MINISTRY OF THE ATTORNEY GENERAL
CONTENTS
Tuesday 26 May 1992
Advocacy Act, 1992, and companion legislation
Ministry of the Attorney General
Steve Fram, legal counsel
Ministry of Health
Gilbert Sharpe, legal director
Giuseppa Bentivegna, legal counsel
Juta Auksi, senior policy consultant, legislation policy unit
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:
*Sullivan, Barbara (Halton Centre L) for Mr Mahoney
*In attendance / présents
Also taking part / Autres participants et participantes:
Sterling, Norman W. (Carleton PC)
Cunningham, Dianne (London North/-Nord PC)
Clerk / Greffière: Freedman, Lisa
Staff / Personnel:
Swift, Susan, research officer, Legislative Research Service
Beecroft, Doug, legislative counsel
The committee met at 1537 in room 151.
ADVOCACY ACT, 1992, AND COMPANION LEGISLATION / LOI DE 1992 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Resuming 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.
MINISTRY OF THE ATTORNEY GENERAL
The Chair (Mr Mike Cooper): I would like to call this meeting of the standing committee on administration of justice to order. We will be continuing with our briefings. Today we will be starting off with 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.
I would like to welcome Mr Fram, our presenter. Could you please identify yourself for the record. You'll be allowed about half an hour for your presentation and then we'll open it up for questions and comments from each of the caucuses.
Mr Steve Fram: I'm Steve Fram from the Ministry of the Attorney General. In spite of the many years of consultations that have gone on previous to the introduction of Bill 108, the Attorney General knew when he spoke to you last December that the process was not complete and that organizations and individuals would be appearing before you to challenge the concepts in the bills. He undertook to you to have staff available during the 17 days of public hearings to listen to those submissions, analyse those briefs and propose for the government changes to the bill.
There are 82 government motions for changes to Bill 108. While many of these motions are technical changes to achieve consistency of language, I believe you will see reflected in the motions the sense of what you heard during the 17 days of public hearings. There are motions that propose changes to respond to some of the specific requests about details of the bills from organizations like the Ontario branch of the Canadian Bar Association, the Ontario Hospital Association, the Ontario Medical Association and AIDS Action Now. However, most important, there are government motions designed to make three changes that will have a very important effect on how the legislation will work for people.
The first set of proposed changes is found primarily in subsection 47(9) and subsection 47(9.1) of the reprint, at the bottom of page 23 and on page 24. These changes, and the side note "Authority before validation," are designed to meet concerns we heard from several advocacy and seniors' organizations and Madeleine Honeyman that the requirements that powers of attorney be validated before they were effective would deny grantors the ability to rely informally on trusted friends and family as their capacity diminished. In short, there was too much formality in Bill 108 about situations where there is no conflict.
The challenge was to permit reliance on powers of attorney while protecting the grantor from losing his or her autonomy when the grantor did something the family didn't agree with, like getting a friend of the opposite sex in his or her senior years, a frequent source of family disputes.
The key to the provision was provided by Patrick Worth of People First of Ontario. He clearly defined the line at which support stops and loss of autonomy begins. He said that the right to stop a decision by saying no ensures that power remains with the individual.
Subsection 47(9) provides that under an unvalidated power of attorney for personal care an attorney can make a decision concerning the grantor's personal care in accordance with the requirements set out. If you will look at those requirements, they begin at the top of page 24.
"(a) the attorney has reasonable grounds to believe that the grantor is incapable of making the decision;
"(b) the attorney explains to the grantor,
"(i) the need for the decision,
"(ii) the decision the attorney intends to make, and
"(iii) the right of the grantor to object to the decision; and
"(c) after receiving the explanation required by clause (b), the grantor does not object to the decision."
Thus, people in their periods of declining capacity or people who never had capacity to make the decision in the first place -- and you'll see that in the next major change -- can retain control by being able to say no and yet allow a family member to consider the decision and make the decision. Many family members will go with the trusted choices of their family.
Mr Norman W. Sterling (Carleton): If I can I ask a specific question, how do you prove that has been done?
Mr Fram: It's a duty of the attorney. The attorney makes the decision. If somebody takes it up, he would have to establish that he did the explanation.
Mr Sterling: So a witness that it had been done in writing or something like that.
Mr Fram: Subsection 47(9.1) provides that, except as provided in the Consent to Treatment Act, which has its own protections, an unvalidated power of attorney cannot be used to override the objection of the grantor to a decision by the attorney. That is the first major effect, and it will in fact provide for a great amount of informality in non-contentious issues, something a lot of people were looking for.
The second of the proposed changes that will have a major effect is set out primarily in the proposed new section 47.1 on page 24 of the reprint, which sets out the capacity to make a power of attorney for personal care. The committee heard from a number of organizations for community living and from several organizations under which adult protective service workers provide services to adults with cognitive impairments. They spoke against the need for guardianship and in favour of supportive decision-making. They told us of people who have been able to get by with community support without guardianship. It's been the view of every Attorney General who has considered substitute decisions that guardianship should be a last resort.
The key to the provisions came in the proposal of the Ontario Advocacy Coalition. It recommended the provisions of a standard of capacity to make a power of attorney for personal care that will permit far more people to choose their own substitute decision-makers. The proposed new section 47.1 would allow people to appoint an attorney for personal care if they are able to understand that the person proposed as attorney has a genuine concern for their welfare and to appreciate they may need the assistance of someone to make their personal care decisions.
Under this proposal, people who cannot make a specific personal care decision themselves would be able to choose someone to make the decision for them. Thus, supportive decision-making can take place. This is not unlike what most of us do when we're required to make a decision about a matter requiring expertise. We choose someone to make the decision, but retain the right to say no to the choice. When combined with the first proposed major change, making unvalidated powers of attorney effective, it means that for almost everyone at almost any stage of their adult lives they would be able to choose someone to lean on to make their decisions for them. It means that if they do not like the decisions, they can say no.
Through this change, parents with an adult child who has a developmental disability will know the network of support they've helped to put in place will be able, with the approval of the person who is supported, to continue that support. It will permit the support network to work with a minimum of formality and ordinarily without state interference. It will permit care givers to receive the authority to act. The public guardian and trustee will be able to focus his or her attention on those who have no support network or where things go wrong.
Some members of the committee may wonder whether there are sufficient safeguards, especially in light of the ability attorneys will have to make decisions without validation. First, you have to look at the kinds of decisions that are involved. We're talking about personal care decisions: health care decisions, nutrition, shelter, clothing, hygiene and safety. It should be noted that the lower threshold of capacity does not apply to capacity to make continuing powers of attorney for property decisions.
What's the situation now? Except for treatment decisions in hospitals and psychiatric facilities, there are no laws permitting personal care substitute decision-making, other than guardianship or committeeship under the Mental Incompetency Act, and they're very few. Substitute decisions are made now for people who are mentally incapable by people who are acting without authority and without any safeguards.
What safeguards are there? For treatment decisions, Bill 109 will apply. The Consent to Treatment Act would provide that before an attorney under an unvalidated power could make a substitute decision, a health care practitioner has found the grantor incapable of consenting to the particular treatment, has proposed and explained the treatment and has determined that the grantor does not object to the treatment, and where the treatment is a controlled act -- and you'll hear more of that from the Ministry of Health representative -- where the grantor objects to the treatment, the practitioner has called on a rights adviser.
Possible concerns about treatment interruptions in psychiatric facilities and hospitals, if a treatment-incapable grantor appoints an inappropriate attorney, are addressed by a proposed amendment to the Consent to Treatment Act to provide that under these circumstances a new attorney does not have authority over the treatment, unless the attorney is approved as the patient's representative by the review board.
1550
Other safeguards: The grantor's objection would bar the attorney making a decision; the grantor's right to revoke the power. A new subsection 47.1(2) would provide, "A person is capable of revoking a power of attorney for personal care if he or she is capable of giving one." Thus, if the grantor no longer trusts the attorney, the grantor can revoke the power.
The grantor's right to block validation: Only attorneys with powers that have been validated will have authority to override the grantor's objection. Before validation takes place, there is a required visit from an advocate to ascertain if the grantor objects to validation.
The public guardian and trustee's scrutiny of validation: If the PGT is given reason to believe that the attorney is not acting properly, the PGT can refuse to validate. That's subsection 49(9).
The presence in facilities and the community of advocates: Those care givers, family and neighbours who are concerned about decisions by an attorney can inform the advocate.
The rights of family and the PGT to apply for guardianship: Section 52 applies.
Finally, the public guardian and trustee's duty and power to investigate an act and act on allegations that the grantor is incapable and is at risk of serious adverse effects: In reality, most of the people, the family members, who surround people who have disabilities are very supportive. They make decisions now. This will permit the person who's receiving the support to designate the person, the family member, the part of the network that he or she believes in and trusts to make those decisions. It will keep the state out of those matters that are consensual by nature.
Subsection 47.1(2) provides that if a person -- we've already done that -- can make the power of attorney, he can revoke it.
Mr Sterling: Could I ask a question? We're getting into a lot of different circumstances and we have the introduction of a new concept here. We have the concept that a person is capable of giving a power of attorney to personal care where he normally wouldn't be able, under our old law or the previous bill, to have capacity to do that. So there are two kinds of people who could be giving powers of attorney for personal care. There are those who are perfectly competent, if you want to put it that way, or those who are not competent or wouldn't be deemed competent for a power of attorney dealing with property assets. This sets a lower standard so that people could give a power of attorney for personal care.
Where is the limitation? I'm concerned about that to some degree. Once you lower the standard, then the vulnerable person could be taken advantage of by any number of people inside or outside the family or whatever. Are the added safeguards that you're putting in peculiar to that lower standard, that lower test? In other words, when the person makes a power of attorney, do they say he's class 1 or class 2?
Mr Fram: No.
Mr Sterling: So they're all the same group?
Mr Fram: They're all the same group. We all make mistakes in whom we choose to trust.
Mr Sterling: Yes.
Mr Fram: The divorce rate proves it.
Mr Sterling: Notwithstanding that, you worry about it. Presumably the person who is more competent, if you want to put it that way, would rectify that upon losing the trust. Perhaps somebody in this situation under the minor test would not take immediate steps to rectify that situation. So they all come under the same test, but then you say it depends on how that power is used as to whether it must be validated or not. Is that correct?
Mr Fram: It needs validation only if it's going to override the objection of the grantor. If, for example, the attorney says, "You're going to live in X group home," and the grantor says no, that decision doesn't stand. Those are the main kinds of decisions that come up. We're talking about safety concerns. We're talking about hygiene concerns. In connection with health care, there is a whole other set of safeguards in that you have a practitioner there who is controlled, himself or herself, by a code of ethics, standards of care. You have a review board to go to in case of objection.
When you think about the kinds of personal care decisions and the things that make major changes in peoples' lives, the ability to say no -- the most serious cases will be either in a home setting or a facility setting where there are people to hear the no.
Mr Sterling: I'm sorry. Could you --
Mr Fram: Okay. Subsection 47.1(3) is very important. It applies a higher standard of capacity for instructions contained in a power of attorney. In essence, the grantor must be able to understand the information relevant to a decision about care to put instructions in his or her power of attorney for personal care, so you have that additional protection. The witnesses are to inquire whether people understand the instructions they are putting in their powers of attorney. That safeguards in two ways: It makes the instructions more valid to act on later for the family members, the person named as attorney, and it also protects against potential abuses using instructions.
The third of the significant changes proposed in the government motions is provision for expedited validation, set out primarily in new sections 50 and 50.1 of the redraft, page 26. During the course of the public hearings you heard from families of people with schizophrenia and other mental disorders. Most eloquently you heard from Bob Walsh who has such episodes and wants a means of ensuring that while he's capable he can take steps to ensure he will get the care he needs and believes he wants when he becomes incapable. You were informed there is no assurance under existing law, or indeed under Bill 108 without the changes proposed, that can be given to Mr Walsh. The Ontario Friends of Schizophrenics appeared before the committee and recommended amendments to Bill 108 to provide a power of attorney that would give Mr Walsh that assurance.
1600
The proposed new section 50 would establish a procedure whereby a person who experienced episodes of mental disorders can, while mentally capable, appoint someone as attorney and give the attorney authority to get the grantor the kind of treatment the grantor has specified over the grantor's incapable objections during an episode. The procedure will ensure that the grantor fully understands what he or she is doing in making the power and that the attorney gets these powers only when they're needed. It has safeguards that protect against abuses without reducing the effectiveness of the power of attorney.
Subsection 50(2) provides many of the unique features. The grantor can provide for the attorney causing him or her to be professionally assessed for capacity when there is an episode. The grantor can set out factors to be considered by the assessor in determining whether the grantor is incapable, for example, things the grantor knows when mentally capable but does not know when mentally incapable. The grantor can authorize the attorney and those assisting the attorney to use reasonable force when necessary to get the grantor to an assessment. The grantor can authorize the attorney to use reasonable and necessary force to take him or her to a place for the care he or she has specified.
The safeguards are of vital importance. The grantor must be assessed as capable of personal care when the power is made. Unlike ordinary powers of attorney, which are merely witnessed, this would require an assessment of capacity at the time of making it. The power must be registered with the public guardian and trustee and the person, the grantor, visited at that time by an advocate, advised of his or her rights and his or her desire to have it registered confirmed. That is, the person must want to have it registered. There must be one assessment of incapacity before it comes into effect. While it comes into effect, when the assessment finds the grantor incapable of personal care, the grantor is still under a duty to file the assessment with the public guardian and trustee and file a plan of guardianship.
The proposed new section 50.1 provides for validated attorneys ceasing to be validated on the assessment that the grantor is capable of personal care. Under subsection 50.1(1) the attorney must arrange for assessments at the grantor's request, but unless the attorney believes the grantor is now capable under 50.1(2) there need not be more than one assessment every six months. Subsection 50.1(4) requires the attorney to notify the public guardian and trustee of the assessor's statement of capacity. Unless the grantor revokes the power of attorney when he or she has been found mentally capable, it can be validated again if incapacity again arises. So it can be a device to protect you against episodes that come up from time to time and will stand by you in those times unless when you're capable you revoke it. That is a major change, and no jurisdiction of which I'm aware has provision for both what might be called a Ulysses contract plus the safeguards on its use. It's in use in many jurisdictions in the United States, sometimes without any legislative sanction, but there are no safeguards of this kind on the use of the power.
Those are the three major effective changes. There's one other change I should bring to your attention. It's neither a small adjustment nor a major change. It was clear from the briefs of such organizations as the Advocacy Centre for the Elderly and the Psychiatric Patient Advocate Office that there is a great need for the public guardian and trustee to investigate and take necessary action on allegations that someone is mentally incapable and is being financially exploited or suffering illness or injury or deprivation of liberty or personal security as a result of the incapacity. It was also made clear that there must be authority for the public guardian and trustee to investigate and obtain records in these circumstances so situations where the allegations are false can quickly be determined and prompt applications to the court for temporary guardianship can be made where the allegations are true.
The proposed new sections 78.1 and 78.2, pages 48 to 52, provide those provisions. They give the public guardian and trustee significant powers to investigate allegations. The provisions themselves should look familiar, since they're modelled on those in the Advocacy Act.
Sections 27 and 59 of Bill 108 impose on the public guardian and trustee the duty to investigate all allegations and the duty to apply to court for temporary guardianship if there are reasonable grounds to believe the allegations are true. However, when Bill 108 was introduced the duty to investigate was not complemented by investigative authority.
Allegations of incapacity and serious harm are frequently made by those who are well-meaning but misinformed, such as neighbours, and those who have improper motives for seeking the intervention of the office -- for example, family disputes over a parent granting a power of attorney to one child but not another, gifts to one child excluding others, or adult children against a parent's new spouse. Allegations invariably describe heinous abuse, neglect and exploitation and are accompanied by a prediction of grave consequences if the office fails to intervene immediately.
It is extremely difficult, if not impossible, to get information necessary to decide whether the PGT should intervene. Sometimes those at serious risk are reclusive or held captive by others who block all reports or efforts to obtain access to the individual. Lawyers, health care workers, financial institutions and government bodies are reluctant to provide information, and they're often constrained by confidentiality rules from providing information.
Subsection 78.1(1) confers on the public guardian and trustee a right of entry limited to the purpose of an investigation under sections 27 or 59. This is all designed to get a meeting with the person alleged to be incapable. While it doesn't determine the matter, it's the single most important investigative tool. It will frequently be found that there is no question that the person is in fact fully capable. One frequent type of situation is where an older person with grown children starts to do anything that's different. All sorts of emotions boil over in the children when a parent seen in one role for a whole lifetime takes an initiative to change his or her life. A visit from the PGT's office to talk to the parent will often be enough to discontinue the investigation.
Subsections 78.1(2) and (3) entitle the person doing the investigation to get into the common areas of a facility or a controlled-access premise. It should be noted that access to a private dwelling unit is only with the consent or acquiescence of the occupier or with a warrant, except where warrants can't be obtained. Subsections 78.1(4), (5), (6) and (7) deal with the details of the warrant: when it may be issued, limits on its use, limits on its duration and permitting the PGT to call on the assistance of the police to enforce the warrant. Subsection 78.1(8) deals with the warrantless entry when it is impractical because of the location of the premises to obtain a warrant for a necessary visit. Subsection 78.1(9) requires a meeting without interference and in private. This is vital for those situations where someone is being confined or coerced. Subsection 78.1(10) requires the PGT to leave promptly when requested to do so by the allegedly incapable person.
Subsection 78.2(1) is designed to provide the PGT with access to a wide variety of records for the purpose of an investigation. Without the provision, much of the information would be confidential and unavailable. On the financial management side, records of financial institutions, records of dealings with bank accounts, pension funds and listing agreements for houses are vital to making a decision about applying for temporary guardianship. On the personal care side, health care records and facility records are vital to making a decision on whether to intervene.
1610
Subsections 78.2(2) and (3) are limitations on access. Solicitor-client privilege prevails and law enforcement privilege prevails. Subsection 78.2(4) provides the rules for when the PGT is entitled to access. Subsections (5), (6), (7) and (8) address the obtaining and use of the warrant to gain access to records. Subsection (9) prohibits the PGT from disclosing the information in clinical records of a psychiatric facility except as provided in the Mental Health Act. Subsection (10) makes all provincial and municipal government records available -- for example, family allowance and other welfare records -- despite confidentiality provisions elsewhere.
Proposed new subsections 27(10) and 59(12) direct what the PGT must do when he has done an investigation and decides that no application for temporary guardianship will be made. First, he must destroy the information. Then he must notify the person investigated that an allegation was made, that the PGT investigated and decided not to act and that the information collected has been destroyed.
I'm pleased to answer any questions you have about these or any of the other government proposals for change to Bill 108.
Mrs Barbara Sullivan (Halton Centre): I don't know if you've seen the Hansard from yesterday, but I think it was clear that we saw some of the proposals for change in these bills as being useful ones. You will understand, with the volume of amendments that have been put forward, even by members of the government party, let alone members of the opposition or of the groups and agencies who have had a particular interest in following the course of these bills, that the analysis is not yet complete.
There are some issues I want to put to you for clarification in terms of amendments on Bill 108. One of them relates to the fact that you've left the assessor still under the regulations to be made latterly. I think one of the things that came forward and that people were concerned about during the hearings related to the consistency in the assessment techniques and the opportunity for revision of the assessment on a regular basis in the training and guidelines for assessors. They are still not very clear under the bill.
I'm not sure if this is a policy question or not, but I wonder why they have not been made more clear in the bill. I've got other questions relating to assessors as we go on.
Mr Fram: I hope this isn't a policy issue. First of all, there's no place we can take the assessment provisions from. No one has provisions for doing proper assessments. It's not like you can borrow expertise from other jurisdictions. The second part is that until bills are enacted, money is seldom available to do all the work that's necessary to achieve it. Some preliminary work has begun. We have a general notion of where it's going, but until those things can be tied down you can't make those decisions.
We have a situation under existing law where there is no existing standard for assessments. It goes all over the place. We know we want a consistent standard. We have preliminary work that was done by David Weisstub on competency assessment. We have been looking at ways of bringing that into effect so that existing professionals can be accredited to do the assessment, but we haven't yet gone far enough to be able to put anything down other than in regulations. It may change over time. It's another one of those things we're going to have to gain knowledge on as we go along and perhaps improve standards.
Mrs Sullivan: This was an area that was addressed by several groups and organizations. I think there were questions relating to this on the very first day these bills came to committee. I think it is a matter of some concern that we have legislation where a major part of the functioning of that legislation is left in a vacuum.
Yet throughout the bill this entire assessment question -- particularly Bill 108 but also the consent to treatment bill -- is affected by the nature of the quality, training and specifications for the individuals who are going to be making decisions. I look, by example, at --
Mr David Winninger (London South): On a point of order, Mr Chair: I thought we had agreed to this forum to allow our experts from the ministry to come and give information on the amendments to the three acts. I'm listening very patiently to Mrs Sullivan, but what I'm hearing her embarking on is an analysis of policy decisions that are being made. I can't understand why we need to waste the valuable time of this committee when these concerns can be expressed as we're doing the clause-by-clause. I think questions should be put to the experts from the ministries, which they certainly have the expertise to answer, but I hear Mrs Sullivan making a statement on assessments that clearly isn't one designed to add any information to the committee.
The Chair: The committee did agree to the briefings. Sometimes the policy comes into effect during the briefings. If Mrs Sullivan gets way out of order, then I will call her out of order.
Mr Winninger: Then I would suggest, if we are embarked on an analysis of policy, that those questions be directed to the parliamentary assistants. Certainly Mr Fram is well-equipped to handle informational questions, no doubt about it.
The Chair: As I stated yesterday, if it was a policy question and the parliamentary assistants decided they wanted to answer, they'd be free to answer if they chose. Mrs Sullivan.
Mrs Sullivan: I will continue in relationship to questions on assessors. Under subsection 46(10) the grantor can name assessors. If this bill receives royal assent and comes into effect, at that point we will have no method of determining who those assessors are or what the standards are. Am I correct? What you're telling us is that there will be a length of time before those regulations would be available.
Mr Fram: That's correct. There will be some gap.
Mrs Sullivan: In other words, some of the rights that are provided through the changes will not be available.
Mr Fram: Parts of the bill could be proclaimed before, for example the provisions providing for prescribing who the assessors are and the training of those assessors. It would be possible to do that before the rest of the bills came into effect.
1620
Mrs Sullivan: I'd like to look at subsection 46(10) in particular, with a similar question on the same issue of assessors and the right of the grantor to select an assessor. I'm sorry; I just can't remember the exact section. If a person is capable, having provided a power of attorney, that person is capable of revoking the power of attorney. It appears to me that subsection 46(10) would enable a person, whether capable or incapable, to select an assessor. Is that what was intended by that subsection?
Mr Fram: Subsection 46(10), in fact the person would have to be capable of making -- I guess this is subsection 47(10) that you're really referring to?
Mrs Sullivan: I guess there are two sections that refer to this same area, but subsection 46(10), the grantor is enabled to -- oh, sorry, just a minute. Yes, you're right, subsection 47(10). I forgot about that section 47.1 business. Subsection 47(10), the grantor can name preferred assessors in a power of attorney, but there isn't the same written obligation for the grantor to be capable at the time the assessor is named.
Mr Fram: But only a person who is capable within the definition of subsection 47.1(1) can make a power of attorney, and that person could name a preferred assessor.
Mrs Sullivan: Okay. That's good then.
Now, subsection 47.1(3), once again in relationship to the instructions and the capability: One of the things that became an issue during the hearings related to the fact that medical treatment changes and approaches to dealing with injury disability or other circumstances change. In the pre-instructions, instructions contained in a power of attorney for personal care while the person is capable are to be executed, provided that the grantor had the capacity to make the instruction, that the grantor was capable at the time. Is there, in bringing this bill together with Bill 109, the facility for an override in the patient's best interests if circumstances had been substantially changed as a result of a change in medical technology or whatever?
Mr Fram: Yes, I think the answer to that lies in Bill 109 where the provisions have been revised, and there is further ability to go to the board about questions about which there is doubt, and that's an excellent question.
In any event, we have revised subsection 63(3) -- that's on page 36 of the reprint -- so the issue is always if the guardian knows of a wish or instruction applicable to the circumstances. Now, owing to circumstances many wishes may become outdated and not applicable any more, so one of the key criteria is applicability.
Again, paragraph 63(3)3 deals with a later wish or instruction expressed that prevails, and paragraph 63(3)4, if there's no wish or instruction that's applicable to the kind of decision in the circumstances, the substitute must make a decision in the person's best interests. So the issue of applicability is a crucial one, and as I said, even when it's applicable, there are provisions to go to the review board when there's doubt in a treatment decision under Bill 109.
Mrs Sullivan: Does that apply to a power of attorney that has been pre-validated?
Mr Fram: It would apply to any substitute decision-maker under Bill 109.
Mrs Sullivan: Okay. Is there any clarification in the amendments that the same person can be designated as a power of attorney for personal care and for property and as a guardian?
Mr Fram: While somebody might be confused, the standard rule of law is that if a thing is not prohibited, it's permitted, and there's no prohibition in the bill. It's hard to state all of the affirmatives that are true in legislation. I think it would become much clearer in the form where you'll have them side by side with instructions, but going down the page, combining a continuing power of attorney for property, preceded by the power of attorney for personal care, and people being able to fill in what they want. That follows the American Bar Association model.
Mrs Sullivan: Okay. If there is a conflict between attorneys for personal care or property care or a guardian where the expenditure of funds is necessary, what is the resolution process?
Mr Fram: Section 80 says the public guardian and trustee can mediate those kinds of disputes, and in both the property section and the personal care section there are provisions for going to the court for directions.
Mrs Sullivan: If there's a personal care decision where immediate treatment is seen to be necessary in the best interests, what is the situation if there's a time lag in the application either to the PGT or to court?
Mr Fram: I'm sorry. I don't understand the question.
Mrs Sullivan: If there's a situation where a person in fact needs an expenditure for personal care -- by example, there is a dispute between the nature or extent of the funding that the property care attorney would provide or should provide -- the issue goes to the PGT or to court.
Mr Fram: You have a mean-spirited property guardian and someone in his dying days wants a trip to Disney World or some such thing that can make his life a little bit happier.
Mrs Sullivan: It may not be mean-spirited.
Mr Fram: It would be up to the public guardian and trustee, but he could apply under the provisions for temporary guardianship. He would then be able to apply on notice for a quick decision by the court.
Mrs Sullivan: Okay. Section 52: I have factors described in that section. This is a new section to the bill. What kind of factors could be included?
Mr Fram: I'm sorry. I'm not on the section.
Mrs Sullivan: Yes, it is the wrong section. I'll find it here in a second. Okay, this is once again back at the assessor. It's paragraph 50(2)2: "An assessor who performs an assessment of the grantor shall consider factors described in the power of attorney." What would be the nature of those factors?
Mr Fram: The factors described in the powers of attorney refer back to section -- they may be symptoms. For example, if I'm doing this or reacting this way, it is a sign that I'm incapable. Or if this is the kind of behaviour I engage in, it's not the kind of behaviour I engage in when I'm capable. It will vary enormously from individuals, but in fact it would be symptomatic of that person's incapacity and his or her episodic disorder. I couldn't find any other way of describing it.
1630
Mrs Sullivan: Yes. It is very loose, though, I think.
Mr Fram: Since it only has to be taken into account by the assessor in doing the assessment --
Mrs Sullivan: If you know what the assessor is qualified and capable of doing.
Mr Sterling: I'm trying to work through here and figure out just what options people have with regard to the amendments you've proposed. At first blush, the best I can get is that you have the choice of making either a validated or an unvalidated power of attorney for personal care. I don't want to deal with the business one at all. You haven't changed any of the laws surrounding that, as I understand.
Mr Fram: Not significantly.
Mr Sterling: So you have the choice of making either a validated or an unvalidated -- from what I read in terms of the requirements for a validated power of attorney, it's a pretty onerous task to go through. Therefore, we're really asking people to make an unvalidated power of attorney. Is that correct?
Mr Fram: In the ordinary case, people will not want to give someone else power to override their decision. So most people will want the right to say no later on. The exceptions will be people who have episodic disorders and some people in the early stages of Alzheimer's who know the declining state they will inevitably go into.
Mr Sterling: The duty to follow these powers of attorney by the health care profession: How is that going to be fleshed out?
Mr Fram: Bill 109 picks up the provision for powers of attorney. That is, if you have a validated power of attorney or a court appointment as guardian, you are the person who makes the decision and they won't coexist. You have a validated power of attorney, an unvalidated power of attorney or you have neither.
Mr Sterling: I'm talking about an unvalidated power of attorney.
Mr Fram: Right.
Mr Sterling: I think 99% of the powers of attorney are not going to be validated.
Mr Fram: That's right.
Mr Sterling: I think that's the right way to go. The other system was just too cumbersome to encourage people to do this. I guess what I'm worried about -- not worried about, curious about -- is when the power of attorney is presented by one family member. The unvalidated power of attorney to the health care professional and the other sibling or relative or whatever says, "That's not valid," or starts to attack the power. What does the health care professional do? They have to just --
Mr Fram: They would have to take the person -- if you have a choice, the person with the power of attorney is the person. That's what the list says. Now, there is a new duty proposed in these amendments to consult with other members of the network. The attorney is under a duty to talk to the other siblings about the situation, to talk to other people who have retained contact with the grantor. In making a decision the practitioner can say, as he would do now in those circumstances: "I'm expecting the answer from John, but would you all go away and talk about it, then come back to me, John, and give me an answer on this?" I think it's quite a practical kind of thing.
Mr Sterling: In terms of the validated power of attorney -- which is a pretty powerful document because it basically says you're giving somebody else the right to override at a later time what you decide -- I'll be interested to see what other people have to say about time limitations and the reassessments and all those kinds of things. I don't know whether they're practical or impractical, but I hope we can garner some wisdom from the witnesses on it.
I assume the validated power of attorney will be in the hands of the attorney, that he will walk into the hospital and say, "I want this treatment for this patient." If there's some question about that validity, how will the health care provider know?
Mr Fram: The other issue is that the proposal requires the public guardian and trustee to establish a register of validated powers of attorney, registered powers of attorney, and several guardianship orders made by the court and so forth. The register is accessible by the hospital, for example. They would be able to check with the public guardian and trustee's office that it was registered and what the terms of the power were, so they would have another means of addressing that issue.
Mrs Sullivan: Would the assessment also be registered?
Mr Fram: The fact that there was an assessment and it had been validated would also be registered.
Mr Sterling: Maybe I'll ask the parliamentary assistant this one. If you have a will, for instance, in Ontario and you want to have it kept somewhere -- I don't know if it's changed now, I haven't practised law for so long -- you used to be able to register it down at the registry office or at the county court office, it used to be, whatever, or the surrogate court office. Is there any provision for registering, as opposed to a valid will, an unvalidated attorney? Was that ever considered or do you think it would be just too cumbersome to do that?
Mr Winninger: I know what you're referring to, because traditionally if you wanted to deposit a will with the probate court, that would be public notice of the existence of the will. I may have to turn this question back to Mr Fram since he has the history with this concept of a registry.
Mr Fram: It was considered and just would be too cumbersome, because you want people to be able to change their minds and choose a different child.
Mr Sterling: I just worry about two of them walking in with two different ones.
Mr Fram: We did provide that the later one revokes the former one.
Mr Sterling: Okay. Do the amendments place more or less burden on the public trustee?
Mr Fram: I think the bill is far more focused. As I recall, it was your concern that we were doing things under Bill 108 that were unnecessary and wasting the resources.
Mr Sterling: That's right.
1640
Mr Fram: I think the focus is much more on things that go bad, that is, when somebody is mentally incapable and is suffering serious adverse affects as a result, the resources of the office will be much more focused on that, because where there is family, where there is a network, without even going to court you will be able to have an authorized substitute decision-maker. You don't have to use the resources of the public guardian and trustee reviewing private applications, exhorting people to get them, so you can focus on the two aspects: those who have no family network -- and there, part of the effort should be trying to build a network around people -- and the second part, when things go really bad, making applications for temporary guardianship.
Mr Sterling: We talked about the duty of the witness in terms of signing this personal power of attorney. In terms of when the treatment is given under an unvalidated power, who's going to measure whether a no has been said or not? Is it just going to be a straight evidentiary matter? I don't know, quite frankly, how the issue would arise.
Mr Fram: Under the Consent to Treatment Act, it's relatively simple because you have a practitioner there and the practitioner has a duty to find out if the person objects before any rights advice or anything else. That's pretty straightforward. That "no" can be overcome, but it's pretty straightforward. There are only so many major decisions, like not having baths if you're in a nursing home. Again, there will be a lot of what there is now, a lot of effort to get the person to do things, and that's what we want. We want less coercion and more persuasion. But the staff will know when the person is saying no.
Mr Sterling: My last question is that if the person is incapable you can go to the courts for a guardianship, as you could under the other bill. There haven't been significant changes to that?
Mr Fram: No.
Mr Sterling: You could have either a family member appointed as a guardian or have the public trustee and guardian, and that's all there is?
Mr Fram: No. You could have anyone who's willing and appropriate apply to be guardian. It's even possible to have an organization provide guardianship services if they became necessary.
Mr Sterling: Okay. Thank you very much.
The Vice-Chair (Mr Mark Morrow): Thank you very much, Mr Sterling. Mr Winninger.
Mr Winninger: I get to ask the tough questions. You referred to the new section 50 as a "Ulysses" clause. Someone the other day asked me, "Why do you call it a `Ulysses' clause?" I said, "It's 20 years since I read Homer, but I'll ask Mr Fram." This seems like a good opportunity.
Mr Sterling: Is this a policy question?
Mr Winninger: Touché.
Mr Fram: Ulysses was out sailing with his men, and he had a fatal attraction to the sirens' call. That's around Sicily; there's a small island with a great number of shipwrecks and seamen were lured for generations on to these rocks. Ulysses said to his men, "I know I can't resist them, so when we get near there and I hear them, tie me to the mast and disregard all my orders until we get by." That's why this has had the Ulysses connotation.
The Vice-Chair: Thank you for that, Mr Winninger. Thank you very much, Mr Fram.
MINISTRY OF HEALTH
The Vice-Chair: I'd like to call forward the officials from the Ministry of Health for Bill 109, An Act respecting Consent to Treatment. Before you start, could you give us your names and what you do in the ministry? You will have roughly a half-hour for your presentation, so there will be time to ask questions. When you're ready, please.
Mr Gilbert Sharpe: Gilbert Sharpe, the legal director at the ministry.
Ms Giuseppa Bentivegna: Giuseppa Bentivegna, legal counsel with the ministry.
Ms Juta Auksi: Juta Auksi, senior policy consultant, legislation policy unit, Ministry of Health.
Mr Sharpe: Just before we get going, I'd like to observe that once again, unlike Citizenship and Health, Steve Fram came with no one but himself. Although this isn't estimates, perhaps you might look kindly on more resources for the AG at the appropriate time. He does a very commendable job on his own, mind you.
I know you have some material in your packages. What I thought we might do is take the reprinted bill and just run through it, highlight changes we feel are significant and, mindful of the time, try to get through it as quickly as we can to leave time for your questions.
Starting at the definition section, the first definition I think is significant is the one of "rights adviser" on page 3. We call it that; originally we talked about "advocate." The function is simply to impart information to individuals as to what opportunities are available to them when they're found to be incapable, and it's not a true advocate function in the sense it is under the Advocacy Act, so the term is changed to "rights adviser." It could be either a person under the Advocacy Act or someone in prescribed circumstances or a member of a prescribed category, which might permit us to designate by regulation different types of people in different settings to serve as rights advisers and not necessarily use the resources of the Advocacy Commission itself.
On page 4 the definition of treatment is altered somewhat to add an exclusion for prescribed things. You might recall during public hearings concerns raised about matters such as bathing a patient and whether or not that would constitute treatment. Clearly it wouldn't, and we didn't want people to feel exposed to liability, so we've permitted some exceptions to the concept of treatment by designation.
Also on page 4, we've made a slight adjustment to section 4, "A health practitioner who proposes a treatment...shall ensure that it is not administered unless" -- recognizing of course that some treatments aren't necessarily done by the health practitioner; they may, for example, be carried out by a nurse. So it's a question of the physician, say, ensuring that certain requirements in section 5 and following are adhered to.
In section 5 we've made a few minor adjustments to clause 5(2)(a) on informed consent. At the end of (a) and in (b) we've made some additions to recognize that health practitioners must also respond to requests made by patients about the treatment and alternative courses of treatment and so on, in addition to just imparting basic information.
On page 6, section 8 has been deleted. That was the age of consent provision, the 16 rebuttable, that so many people at committee seemed to be concerned about. We've taken it out entirely and we're relying on the common law which, of course, is simply a matter of when the young person is sufficiently capable to provide an informed consent, and it will vary with the complexity of the procedure that's being proposed and the maturity of the young person. It provides sufficient flexibility that we feel, with the other safeguards that are embraced in the bill, that it may in fact be more useful than having a rigid age, where physicians and others have to rebut presumptions and may not do so, which could of course result in barriers to health care for some young people and for certain types of services. So we've taken out any reference to age.
Mr Sterling: Could I ask a question? Why not codify the common law?
1650
Mr Sharpe: We have. The common law is reflected in the concept of capacity, and since the capacity test now applies to everyone, including youngsters, it's simply a matter of the practitioner deciding whether he or she is dealing with a capable person. As we see now, as we're getting into section 10, the rights advice, following a finding of incapacity, applies at the age of 12 and over. We'll see in a bit that even persons under 12 have access to the review board, but it's just that they're not rebutting anything. It's simply a matter of the practitioner deciding if he or she is dealing with a capable person.
Getting into section 10, you will recall that originally section 10 required an advocate's visit every time the person was found incapable, no matter where he or she was and in whatever kind of health care setting. Many concerns were raised about that, so we've changed that section probably most significantly of any provisions of the bill. What we now have in subsection 10(1), if a practitioner finds a person 12 and older to be incapable, to be incompetent, you tell the person that. I think it's only common sense to tell someone that he or she is not capable and that someone else is going to decide things for him or her.
In subsection 10(2) and following, these are now the provisions that will trigger rights advice. We're retaining, in a psychiatric facility, the concept of telling people who have been found incompetent that they have the ability to challenge that finding to the board and that they're entitled to meet with a rights adviser and to make an application to the board.
In subsection 10(3), in settings outside a psychiatric facility or designated or prescribed facility, the practitioner is only required to tell persons 12 and older of the right to go to a review board. If it's a controlled act within the meaning of the Regulated Health Professions Act, that is not an excluded controlled act.
The notion here is that the controlled acts tend to be the more serious intrusions in care that carry with them risks that would normally require an informed consent, so if that type of procedure is contemplated in any health care setting, then it carries with it a requirement that rights advice be imparted to the individual patient. It doesn't necessarily mean you have to have a rights adviser visit them. The concept is that if the patients are then being told they could have a rights adviser and they indicate they would want that visit, then treatment would be delayed to obtain it; or if they object to the treatment, then a rights adviser could be brought in at that point, but it's not a requirement that every time a patient is found incapable with respect to any health care treatment there must be a visit. That's basically the concept in section 10.
Subsection 10(4) then gets into the obligations to notify of the rights advisers and so on. The rest of the provisions deal with the mechanisms for visiting and so on, and exclusions similar to what we had in the old section 10.
Subsection 10(13), on page 8, is the provision that says nothing in this section affects the right of a person of any age to go to the board or give or refuse consent with respect to a treatment. So although we've chosen age 12 as the point at which rights advice is triggered, those under 12 have the same right to challenge the decision that they are not capable with respect to a particular treatment.
Sections 13 and 14 on page 9, we've streamlined. There are criticisms and concerns that it's hard to understand so, as you can see, in section 13 we have simply said the obvious, that a person, while capable, can express wishes. They can be in a power of attorney, a prescribed form, another form, orally or in any other manner. Basically, if you have desires about how you want to be cared for in terms of health care treatment, you can express those in a number of ways. Later wishes, expressed while capable, prevail over earlier wishes, which is a streamlining and simplification of what we had.
Subsection 14(1) also has been streamlined. The person who's giving the substitute consent acts on the basis of known wishes, or if you don't know of any wishes expressed while capable, then best interests. The rest remains pretty much the same as to what "best interests" means.
Page 10, section 15: Concerns were raised during the hearings by some of the research community about research. We segregated out research from sterilization and organ donation so, as you can see, it has its own little section now dealing with the notion that nothing in this act is affecting whatever the common-law rights might be in terms of research. Professor Weisstub, as you know, has been asked to study the issue of research with incompetent populations, and we're hoping to receive his report in the fall.
Page 11, subsection 16(3.1): I believe Steve Fram talked a bit about the lowering threshold of capacity in executing powers of attorney. This section indicates that if the person comes into hospital, say, and has been assessed as incapable by a health care professional, after that finding was made for the purpose of treatment and our mechanisms of substitute decision-making would come in, at that point the person cannot execute a power of attorney. They're incapable of understanding the treatment so as to give an informed consent. They've been found so. They have certain rights of review to the board we've discussed before, but they cannot at that stage execute a power of attorney appointing someone else and essentially nullifying our list of prioritizations. If they're going to get into that, they have to do it in advance through a power of attorney or otherwise.
Page 13, section 19: This is the admission to hospital notion, that the substitute who is consenting on behalf of an incapable person to the treatment can consent to the admission to a hospital or psychiatric facility or another type of health facility that's prescribed for the purpose of getting him or her that treatment.
Subsection (2) deals with the objecting individual. The original draft of section 19 said that if the person's objecting to admission for physical care, there had to be a guardian and then if it were for psychiatric care, the guardian would have to have special authorization to admit him to a facility. After much discussion with a number of individuals and listening to the people who presented here, we've dropped the requirement for a guardian for admission of the objecting person for physical care, but we've retained the notion that you need a guardian for psychiatric admissions, although the guardian doesn't necessarily have to have special authorization.
However, we've added in section 29.1 a status review. We've had this for years in the Mental Health Act for so-called informal patients, or kids. This allows someone who is brought into hospital on the authorization of a substitute to ask the review board to consider a number of conditions to decide whether or not he is in the most appropriate setting. We'll come to those in a few minutes, but we've added that as a safeguard while allowing the substitute to have the authority to get someone in for physical care even if he's objecting.
Section 22 gets into the emergency treatment area. As you know, there have been many concerns raised during the hearings on the way in which this was put together originally and questions about whether it would slow down care in emergencies. We have made some changes based on much of that input. For example, we removed the provision that required that the likely harm would happen within 12 hours, we deleted the 72-hour requirement -- you can only give the treatment in an emergency for up to 72 hours -- and we added in 22(1)(b) the notion of severe suffering, someone who is in severe pain, in addition to the concept of at risk of suffering serious bodily harm as authorizing limited treatment where the person is incapable and there's no substitute readily available to provide a consent.
Subsection 22(3.1) responds to the concern of providers that the way the section was drafted they didn't feel they could conduct a preliminary examination to determine whether emergency conditions truly existed, that it seemed to be a cart and horse problem, so as you can see there, we've provided the health practitioner with the authority to conduct an examination. In the last few weeks we've talked to a number of providers. The College of Physicians and Surgeons would like to see "examination" defined to include basic diagnostic investigatory procedures. They're concerned that a simple reading of this may be that all you can do is, say, put a stethoscope to someone's chest, that you can't do any more.
I think that's certainly worth looking at as we get into clause-by-clause, because it's clear we've created this provision to enable some basic diagnosis to determine whether there's a true emergency. If the profession's telling us that we're still a bit ambiguous, then my own view would be to try to define the term in a way that gives some clarity to it. That's just something to think about later on.
1700
Mr Winninger: I wonder if that would extend to a blood test, or is that the kind of clarity you're seeking?
Mr Sharpe: I think we should talk about that. There may be circumstances where a blood test or a spinal tap, for example, to determine whether there's infection in the spinal column might diagnose meningitis or some serious ailment with an unconscious individual and no one is there to give consent. We're told that may be necessary, although it's quite intrusive.
Just to finish off, subsection 22(9): I wanted to point out that this says, "The authority to administer treatment... includes authority to have the person admitted to a hospital for the purpose of treatment, other than treatment of a mental disorder, as defined in the Mental Health Act."
This is different. We did allow emergency admission to psychiatric facilities as well under the original draft. The concern here was that the committal criterion safeguards of the Mental Health Act might be circumvented in so-called psychiatric emergencies. That was not intended by the draft, so what this means is there is no emergency admission for psychiatric treatment. Remember, in section 19 we said that where there's a substitute, he or she can sign the person in for psychiatric as well as physical care. In a physical emergency, 22(9) would apply and the power to admit is there without the need to have a substitute. However, for psychiatric emergencies, one would have to go through the Mental Health Act procedure. Many of you know the very carefully worked out safeguards that have been developed there over the years.
Section 23.1 is new. Concerns have been raised about someone who is a remote next of kin refusing lifesaving treatment and whether he should have that power, particularly where it may be fairly clear to the provider the person is not acting in his best interests or necessarily reflecting his wishes. There's no living will, power of attorney, advance directive or anything of that sort; there's no card in his wallet. This section would permit the health practitioner to provide the treatment except where the refusal is given by someone in the first three categories. That's the guardian, the person acting under a validated or an unvalidated power of attorney or someone appointed by the review board as the substitute. If any of those people say no, it's no.
But then we get into this list of people we have, next of kin. If someone there says no, if the health practitioner is of the opinion the incapable person is suffering severe pain or at risk of suffering serious bodily harm -- again, the emergency criteria. If treatment isn't administered properly and there are reasonable grounds to believe the substitute hasn't complied with section 14, which is accurately reflecting the wishes or best interests, then the emergency lifesaving treatment can be given. Again, that's something that perhaps the committee will want to discuss further in clause-by-clause, but it was considered an important balance.
I think when I first talked to you here in December we went through the notion that it's not, in my view, clear in law now whether a substitute could prevent lifesaving treatment if a person were brought into emergency unconscious and dying. Could the substitute say no and prevent treatment where there's nothing to indicate that the person would not have wanted the treatment? We're not talking about Jehovah's Witnesses with cards and so on.
It's a difficult issue, and I think most providers today in those circumstances would give the treatment necessary to save the life. This is codifying the situation unless there are powers of attorney, living wills or substitutes appointed by the court or the individual. As Steve indicated, we've augmented the criteria under which people can apply to the board and we've allowed the substitute to go into issues of whether the person was capable when his or her wishes were expressed.
Subsection 29(1) on page 19 is the matter I referred to earlier about providing a status review for people who were signed into hospital by a substitute and then they decide they don't want to be there. This sets up a process for them to go to the board. You can see there's a series of criteria in paragraph 29(1)4 that the board could review to decide whether that placement is the most appropriate one, and the board in fact can order that they be discharged from hospital.
We've added some procedural provisions. Section 40.1, on page 24, allows the board chair to make rules of procedure, and this is common for other tribunals as well. Section 45, on page 26, which finishes off what we started discussing on the definitions of rights advisers and so on, allows us to prescribe categories and circumstances of rights advisers. Clause 45(a.2) deals with prescribing things that don't constitute treatment, like bathing a patient, and prescribing health facilities and controlled acts are dealt with later on. In section 47 the coming-into-force provision of the bill was altered from the time the Advocacy Act is proclaimed to proclamation, which of course is the norm for most bills.
Would you like me to review the changes to Bill 110 as well or have questions on Bill 109 before we do that?
The Chair: I think we probably have the time that we could proceed with Bill 110 at the same time.
Mr Sharpe: You have some material in front of you describing those changes. Very briefly, the major change that was not in Bill 110 originally is to the Child and Family Services Act. As most of you may be aware, there are provisions in that statute dealing with secure care for young people. Some of those provisions deal with treatment, and it was necessary to make alterations to the Child and Family Services Act in order to make it consistent with ours.
As an example, on page 3 of Bill 110 there is an amendment to subsection 40(9) of the Child and Family Services Act. A child protection worker who has apprehended a child may, if the child is under 12, require a medical exam of the child, and for that purpose, the Consent to Treatment Act is cut out. For a child who is 12 or older and is not competent, then that child protection worker is deemed to have authority under the Consent to Treatment Act to provide the consent necessary for the examination. This is typically a situation where, say, a young woman suspected of having been abused by her father is brought to the hospital emergency after apprehension and an examination is necessary, perhaps, in order to gather the evidence necessary. The young person, if capable, should, consistent with the rules in the consent act of the common law being codified on age, be able to say no if she doesn't want that done. However, if they're incapable, then we're allowing the child protection worker to stand in the shoes of the parent and authorize the examination.
The changes to the bill in the next few pages, for example on page 5 at the bottom in subsection 132(1), also deal with age. The Child and Family Services Act originally had age 16 for many purposes, and what we're doing is creating the flexibility of the common law in most cases that we've put into Bill 109. Those are the major changes to the bill.
There are some minor changes we've made to the Mental Health Act, dealing with access to records and other matters, but I think in the interests of time I've highlighted the major changes from our perspective, and I'd be happy to take questions.
1710
Mrs Sullivan: We have been quite impressed with the number of changes and the approach that was taken on this bill. I think that in many areas a lot of the very serious concerns of health care providers were met. There are a couple of areas that are new to the bill that I'd be interested in hearing more from you on. One of them is the ancillary treatment section, 19.1. Would you see the consent provision in that section applying to situations where surgery might be alternative to the original surgery that was envisaged in the consent or where surgery might be extended from what was originally there? Does treatment that's necessary and ancillary to the treatment include those scenarios?
Mr Sharpe: No. This is in response to concerns, as an example, raised by OMA and the college. If a consent were obtained, say, to surgery and then as a result of the preparation for surgery injections were required, blood drawn, all kinds of pre-op medication given, the notion of implied consent to those other things, which is normally taken to be the case under the common law, might not pertain because in this act we're talking about being very specific: getting consents to every act of treatment. They wanted it to be clear that when we provide for consent that consent can embrace things like pre-op workups for surgery that are necessarily ancillary to the surgery itself, to which the patient has consented. But during surgery, where it then becomes necessary to go on and do something else that may be quite different or an extension, in my view that would require a separate consent.
If one's doing exploratory surgery for cancer, for example, the consent forms would normally take into account the fact that other surgeries may be necessary depending on what the surgeon finds, because most patients would consider it unreasonable to be awakened, have a discussion and have to be put under again. The provision we've drafted certainly is not intended to give carte blanche authority to surgeons to go off and do whatever else might be considered appropriate in their minds while the patient's under anaesthetic. As I say, it was just to cover other forms of treatment given during the preparation for the major treatment to which the patient has consented.
Mrs Sullivan: One of the examples we had before the committee came from AIDS Action Now relating to diagnostic tests that might occur during the course of treatment to lead to the next phase of treatment. Would you see a second consent necessary for those tests, or would they be part of the course of treatment and considered ancillary to the original treatment?
Mr Sharpe: We've defined "treatment" in the amendments, as you know, to include a course of treatment. That was one of the concerns raised. I really imagine it would depend on the medical definition of what is embraced in the proposed care that's offered to a patient. If we were to go into hospital and be told that in order to properly diagnose our problem a series of tests had to be undertaken, depending on whether those specific tests carried with them risks -- an intravenous pyelogram has risks and there have been deaths -- most hospitals have gone to individual consents for those tests. Certainly in my view the consent to the overall approach to the care would not have necessarily embraced that IVP that's about to be proposed and conducted.
My experience is that much that's done in hospitals is viewed by counsel from the perspective of risks that the hospital and doctors are exposed to. So if it's viewed as important that patients consent specifically to certain types of intrusive tests, then there is a very careful delineation of those tests and separate consents are obtained.
Again, the notion of ancillary care and ancillary treatment, from our perspective, probably could embrace a lot of those tests if the purpose for the admission was to diagnose something and it was difficult to get a handle on what the problem is. So one could go in and consent in a general way to a number of investigatory treatments and diagnostic techniques being used that would carry with them ancillary dimensions. But generally speaking, the profession moved away from blanket consents some time ago. At one time you'd go into hospital and sign a general consent to anything that was required. Those are very rare. I think the reason for them is clear: At common law they really afford no protection.
Mrs Sullivan: Certainly one of the areas I'll be following up on is whether women feel that's the case in terms of their treatment. Too frequently we know of tubal ligations that too readily lead to removal of the ovaries or further action. Perhaps before we go into the final consideration of this bill we'd like to look at some of those areas.
You moved from instructions to wishes. Bill 108 continues instructions. Could you address the question of why, and is there still compatibility?
Mr Sharpe: Our view was again based on discussions with a number of people, that instructions are something much more formal. A client instructs a lawyer to prepare a will in a certain way. I think much of Bill 108 carries with it the notion of formality: formal court applications and powers of attorney that have been validated, that are formal documents that have been completed in a certain way and witnessed and so on and that contain instructions.
We've indicated that if there is that type of power of attorney we would consider that to govern and take priority and guide the substitute over other things. But our view is that from a health care perspective, speaking in a more colloquial term, it's patients expressing desires or wishes as to how they might want to be treated.
Those wishes would embrace instructions that are formally set out by a Jehovah's Witness or someone with the Dying With Dignity organization or others, but they might also be expressed just in a statement of one spouse to another. We wanted in our bill to stay away from the formalized concepts of expressing your wishes for health care purposes. If the wishes are known, no matter how expressed, they are to be given priority. That's the approach we've taken.
Mr Sterling: Can I just ask a question? What is the obligation of the health care provider to follow the wish under your legislation? There's some common law already established in Ontario that there is an obligation to follow the written wish of a patient. Under section 13 you leave it pretty open as to --
Mr Sharpe: In section 4, what we've said is that the health practitioner who proposes the treatment cannot administer it unless he has a consent. If the person's incapable, the consent has to come from the substitute. Then in paragraph 14(1)1 the substitute is bound by the wishes, if known. So when you put them together -- you have the prohibition in section 4, the doctor can't proceed without a consent, the substitute must provide the consent only in line with the wishes of the person he is representing -- I think therein lies the obligation.
Mr Sterling: Under section 13, any living wills that have been made in the past would, of course, "live on."
Mr Sharpe: The thing we wrestled with in section 13 -- and again I think, when the time comes, it bears some discussion -- is that if someone has made out a living will or a power of attorney and later on is not in a position to formally revoke it but wants to and tells someone close to him he has changed his mind and we've set a structure up that says to undo what he has done formally it must be done through some formalized mechanism, it may prevent someone from changing his mind when now faced with the crisis he anticipated but didn't really appreciate when he was well.
So in subsection 13(2) we said that wishes may be expressed in a number of ways: in a power of attorney, in a form we could prescribe for advance directives and any other written form, orally or in another other manner. To say, as we did in the old section, that the power of attorney or the living will takes priority isn't really that meaningful when you go on to say as we did, "However, if you know there are prior wishes or more recent wishes that indicate the person has changed his mind, then those govern."
So in fact all we're saying here is that wishes govern, no matter how expressed, and must be listened to. The more recent wishes are the ones that take priority, no matter how expressed. You can say, "Yes, but that's subject to abuse," because when the patient is incompetent, the family could say, "Notwithstanding that power of attorney, they told us last week that they're frightened and they want to be kept going on the life support." The way this is drafted the physicians would then be in a position of having to listen to that. But to not do that -- do we want to put an obligation on people to have to undo what they did in a formal way? It's a difficult issue. This makes it easier to override a power of attorney by the family, but to not do this creates problems as well.
1720
Mr Sterling: Just refining there, and I don't know whether you dodged it or didn't understand --
Mr Sharpe: I probably dodged it.
Mr Sterling: If you have a living will today and this legislation comes into effect tomorrow, it doesn't negate what you did before the legislation.
Mr Sharpe: No, it doesn't. It's an expression of wishes and it would be valid.
Mr Sterling: Okay. I was asking that on behalf of Dying with Dignity.
Mrs Sullivan: I wanted to pursue the line of questioning I was raising relating to Bill 108 and the assessor. Under this bill the health practitioner is the assessor.
Mr Sharpe: Yes.
Mrs Sullivan: There perhaps could be other people who are assessors and who may have reached a conclusion about the capacity of the person to deal with certain issues, including health and personal care. Who would have the override?
Mr Sharpe: You guys can jump in if you think I'm wrong, and I may well be, but the way I see this operating would be that if there is a guardian appointed by the court, that decision that's been made in that capacity would govern, and when the person came in for health care the guardian would make the decision. There wouldn't be any need to have the health practitioner decide whether or not the person was at this time incapable.
A power of attorney that's been executed and that has been validated, through assessments of incapacity may speak generally of personal care decision-making but still may not be specifically related to the actual health care decision that is under consideration. I would expect that in those circumstances the physician might still look at the person, make his own assessment and may decide he is capable. If they decide they're incapable, then they would of course go to the person appointed under the power of attorney for personal care. But if they decide they are capable, then they would let them make their own decision. If I'm wrong on that you can tell me, but I would hope that it's not a situation where you would have to take the power of attorney as a given indication that they're incapable and then have to somehow reverse that process before they would have autonomy to make their own health care decisions.
Ms Auksi: I'd just add a little bit. I think the expectation is that if a power of attorney has been validated, it would most likely include an assessment for purposes of health care decisions, and in that case the health practitioner would not be making a separate assessment of capacity for each treatment decision. However, by leaving it that the health practitioner can, it means that unvalidated powers of attorney can still honour who the person is who's been named, and all that would be required is a finding of incapacity to have the attorney be able to make the decision. So you could have the person simply arriving for treatment without a formal assessment being made, but for that decision he wouldn't have to go through the process for the broader incapacity finding.
Mrs Sullivan: In clause-by-clause we may want to talk about that a little more just for clarification.
Mr Sharpe: I would just point out that section 12 does deal with it and would seem to give priority to both the guardian and the person appointed under the power of attorney for personal care that's been validated. But there may be an issue as to whether or not that should be altered.
Mrs Sullivan: If the person for certain treatments could be capable, even with all this other stuff around.
Mr Sharpe: That's right.
Mrs Sullivan: Are midwives covered?
Mr Sharpe: Midwives are covered under the Regulated Health Professions Act, so they will be, yes.
Mrs Sullivan: So they are in the list.
Mr Sharpe: Yes.
Mr Sterling: I want to say, and I did say it to Mr Fram, that I'm generally pleased with the changes to Bills 108 and 109, but because they are complicated bills I'd also really like to hear some of the people who are involved in the bottom line of these things and how they would react to them.
What is the net result of Bill 109 now with regard to someone who is under 12 years of age?
Mr Sharpe: And wants to make his or her own decision on health care?
Mr Sterling: You remember we had the dentist here who said Johnny comes in, Mom says, "Get in the chair," and he says, "No way."
Mr Sharpe: I think the parents can coerce Johnny at will now without fear of having triggered an advocate's visit. The obligation to provide rights advice is 12 and up. Even if Johnny is seen as objecting to the dental care in that situation, unless Johnny knows that he has a right to go to the review board and by triggering the process can delay the treatment, he would probably be strong-armed into the chair. But his right is still there to go to the board; he probably just won't know about it.
Mr Sterling: I don't have any further questions. You had extensive consultations with some of the people who were here. I don't know whether I should be asking Paul this question or not. Are there any who are still concerned about the act, or are most of them placated by the changes?
Mr Paul Wessenger (Simcoe Centre): I have not had any particular input yet from the groups, but I understand that generally it's felt there's a good balance with respect to the rights of the individual, the consumer, and the rights of the providers with these amendments. That's generally the perception I have of the bill, that we've achieved a good balance here with these amendments.
Mr Mark Morrow (Wentworth East): Before I ask my question, I want to thank you for taking the time to come and explain the amendments to Bill 109.
During our public hearings we heard a lot of concerns that family members would be unable to make timely treatment decisions for their mentally incapable relatives because of health practitioners' concerns as to the search for the highest-ranked relative. Do these amendments address those concerns?
Mr Sharpe: I should have mentioned this with section 16 when we were going through this; I guess I jumped over it. Page 11, subsection 16(5.1): The concept is that if someone in the list of substitute decision-makers -- family members, next of kin -- happens to have taken the person into care and wishes to make the decision for him to have the treatment rather than delaying and searching for someone higher up the list, what we say here is that the person who is present may give or refuse consent unless he has reason to believe someone higher up the list is available or that someone higher up the list would want to make the decision or that the person himself would object to his making it. Those types of safeguards are in, but basically we've provided a mechanism for whoever happens to be present with the incompetent person to give consent to the treatment, even if he's not the highest-ranking individual.
Mr Morrow: So the concerns have been addressed.
Mr Sharpe: We hope this does it. It's always a balance. We've put the provision in, but then we've put some obligations on the substitute to ensure he doesn't know of anyone higher up that he should be searching for to bring down quickly to the hospital. We would think this type of change and some of the changes to the emergency sections would address those types of concerns. Certainly the discussions we've had so far with the limited number of groups have supported that.
Mr Morrow: That's all I have, Mr Chair.
Mrs Sullivan: I have no further questions of Mr Sharpe or the other representatives from the Ministry of Health, but I do want to discuss an issue for the committee in relation to the agenda.
The Chair: Okay, we'll take that up immediately following this. Seeing no further questions or comments, Mr Sharpe, Ms Bentivegna and Ms Auksi, on behalf of the committee I would like to thank you for taking the time to give your briefing to the committee today.
1730
Mrs Sullivan: While this has been a long process and there have been substantial amendments put forward by the government in relation to these bills, I think the number of the amendments and the complexity of the interrelations has been problematical not only for members of the committee but for the groups and organizations and individuals who have been interested in pursuing this legislation and who have appeared before the committee. We had a formal request from a coalition of organizations from Alzheimer's, College of Nurses, College of Physicians and Surgeons, Friends of Schizophrenics, Ontario Hospital Association, Ontario Medical Association and the Ontario Nursing Home Association. I have had subsequent calls from other groups and organizations, including the National Association of Women and the Law and the Ontario Nurses' Association, saying they would appreciate time to appear before the committee to address some further issues.
However, in order to do that, they need additional time to study the impact of these amendments. We had some preliminary discussion. The issue was going to be dealt with in meetings of the House leaders. I think it's now time for us to provide some indication of our views on when people could come before the committee, what the length of an additional public hearing process would be and then when clause-by-clause would commence.
The Chair: Discussion? Mr Sterling.
Mr Sterling: I don't know if the clerk or researcher can help us. Have we any indication at all from various witnesses we've had before us if they want or are ready to come back to the committee with regard to the amended bills?
Clerk of the Committee (Ms Lisa Freedman): I handed out to the committee yesterday the list of anybody who had faxed or written me.
Mr Sterling: I didn't see that. Are any of them ready to come and talk to the committee at this time? Have you any indication from anyone?
Clerk of the Committee: I think a lot of the people I spoke to on the phone are furiously preparing. That would be fairly accurate.
Mr Sterling: I understand, at least from our House leader, that the House leaders have made a tentative arrangement that we would try to start our public hearings as soon as we could during the month of June, and also have provided for two weeks during the summer to continue those hearings. That's what our House leader indicated to me this morning. Until the Chair has an opportunity to talk to his House leader, I guess it's pretty hard to get to the next step.
Mr Winninger: I respectfully ask, Mr Chair, whether this question can't be deferred until next Monday and in the meantime, if it's necessary, have a subcommittee meeting, because I understand the House leaders are meeting to discuss this very issue of scheduling tomorrow and also on Thursday. Until we hear their collective wisdom on the issue, it might be premature to start setting down any hard and fast dates.
The Chair: Possibly we could have a subcommittee meeting on Thursday afternoon, after the House leaders have met
Mr Sterling: The information I'm going to need is how quickly these people can respond. If the clerk can help in any way, I'd appreciate that knowledge on Thursday.
Clerk of the Committee: I can add that I've told the people who have called me that given how things historically tend to work around here, if there are public hearings -- which decision has not been made -- they could start as early as next Monday, which could be the next sitting of the committee. So people are aware that, should a decision be made, this committee sits on Monday and Tuesday and the hearings may just be the next natural step.
Mrs Sullivan: I want to bring to the attention of the committee, though, that a specific request which came from the organizations I earlier read said this specifically: "While the amendments have resulted in what appear to be significant improvements in some areas, there are also issues that continue to be of serious concern as well as some new provisions that require consideration. To that end, we request that sufficient time be given to permit thoughtful analysis of the new legislation and to assess its impact on those persons whom it is intended to help."
Certainly one of the organizations, the Ontario Medical Association, has indicated it wants to speak further with its own organization about some of the impact of the bills. The organizations listed here have indicated that they will not be ready to come back next Monday.
Mr Sterling: I think Mr Winninger's suggestion that we wait till next Monday to deal with it is probably best. We'll have a little more knowledge in order to make our plans.
The Chair: If it's the pleasure of the committee, we'll defer this until next Monday. Seeing no further business before this committee, this committee stands adjourned until next Monday at 3:30.
The committee adjourned at 1736.