ADVOCACY ACT, 1992 / LOI DE 1992 SUR L'INTERVENTION
CONTENTS
Wednesday 16 September 1992
Advocacy Act, 1992
Consent and Capacity Statute Law Amendment Act, 1992
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:
*Miclash, Frank (Kenora L) for Mr Mahoney
*Sterling, Norman W. (Carleton PC) for Mr Harnick
*Sullivan, Barbara (Halton Centre L) for Mr Chiarelli
*Wilson, Jim (Simcoe West/-Ouest PC) for Mr Runciman
*In attendance / présents
Also taking part / Autres participants et participantes: Czukar, Gail, legal counsel, Ministry of Health
Fram, Steve, counsel, policy development division, Ministry of the Attorney General
Malkowski, Gary, parliamentary assistant to the Minister of Citizenship
McKague, Carla, counsel, Office for Disability Issues, Ministry of Citizenship
Sharpe, Gilbert, director, legal services branch, Ministry of Health
Winninger, David, parliamentary assistant to the Attorney General
Clerk / Greffière: Freedman, Lisa
Staff / Personnel:
Beecroft, Doug, legislative counsel
Hopkins, Laura, legislative counsel
The committee met at 1022 in room 151.
ADVOCACY ACT, 1992 / LOI DE 1992 SUR L'INTERVENTION
Consideration of Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / Loi concernant la prestation de services d'intervention en faveur des personnes vulnérables.
The Chair (Mr Mike Cooper): I'd like to call this meeting of the standing committee on administration of justice to order. This morning we will be continuing our deliberation clause by clause on Bill 74.
Before we start, could I get unanimous agreement that we will be dealing with the government motions that were put forward yesterday starting from section 24? Do we have unanimous consent? Agreed.
The first one is government motion subsection 24(4.1) and 24(4.2).
Mrs Barbara Sullivan (Halton Centre): In the course of speaking to subsection 24(4.1) I'd like to speak to all the government amendments, the purpose for which they've been put forward and the effect. I will tell you that we will not be supporting any of them. We believe that what the government has done is duplicitous. In terms of section 25, we believe that amendment is out of order and I will put those arguments.
Subsection 24(4.1) would enable an advocate, without even reason, to have a document, access that document. The advocate would be entitled to a record whether the person is at risk or whether the record is necessary for the purposes of advocacy. You can see that in the lines that read, "If the advocate is not entitled to access under subsection (2), the advocate is entitled to have access to the record." That, to us, is outrageous. Why should there be access if there is no purpose for which the advocate has the power to act for the advocate to have access to that record?
Subsection 25(1) moves even further into the realms of the outrageous. The commission consent to access for systemic purposes with this amendment would prevail over any other act. The consent for the access would relate not to consent for records of the vulnerable people but to consent of any person in Ontario who is disabled, any person in Ontario over 65, without the consent of those people.
Either the assumption is that all disabled and all seniors are vulnerable or, what I believe to be the case, the policy intent here, which I believe is duplicitous, is that the Advocacy Commission has a political agenda which is totally removed from the purposes of this act and which I believe has no place here. There is no limitation on the types of records that can be accessed, and these amendments indeed don't remove the access to peer review records or quality assurance records.
I want to suggest to you, Mr Chairman, that with this power the Advocacy Commission, through its advocates, would be able to access the records of 1,263,000 disabled in Ontario -- 1,163,990 disabled if the act still is limited to those over 16 -- and the records of 1,183,475 seniors in Ontario. Further, that amendment would provide consent to administrative records -- the orders, the directives, the guidelines -- which in fact specifically would include the peer review and quality assurance records. We cannot accept that; it is contrary to every piece of advice we've had through commissions in the past, including the Prichard report, and from every single health provider and facility in Ontario.
The other area of major concern with respect to these new bills relates to the fact that the documents which could be accessed would be accessed as if the Freedom of Information and Protection of Privacy Act applied. In my view, what this does is provide access without the relevant and balancing protections of that act. I believe that is out of order. I will be requesting an opinion from the clerk with respect to whether the amendments proposed in subsection 25(1) are in order. I believe they're out of order for two reasons: One is that they change the purpose and intent of the act by extending the scope of the act from vulnerable persons to people who are disabled and over 65 and, secondly, because this amendment changes an act without having the change to the act made itself. I believe those are out of order and I want the ruling from the clerk and, if necessary, from the officers of the House.
Mr Jim Wilson (Simcoe West): Mr Chairman, we're most discouraged, to say the least. I could think of a stronger word at the moment and if it were polite I would use it. In terms of what we saw last night, I think members of the public had better know what's happening right here in this committee room, because history is being made and it's bad history; it will be recorded as such. We have going on right now, as of the amendments Mr Malkowski and Mr Winninger brought in last night -- the NDP brought in -- a point where the Big Brother syndrome is evident more than I think it has ever been evident before, certainly in health care legislation.
You people, the government, have gone to an absolute extreme here in terms of wanting records not only on vulnerable people, because you're now changing -- you're taking out that section in 25 that would limit the advocate accessing records just to vulnerable people. You're now saying that everybody 65 years of age and older in this province is disabled, that an advocate they do not know can go in and take their records.
If you thought the social insurance number debate that the federal government has gone through over the years was tough on the government, wait till you see when seniors wake up in this province and realize that you people want access to their records while they're in hospital or in a health care setting or in a number of other settings. That's disgusting. That's about the strongest word I can think of. It's absolutely disgusting.
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Instead of bringing in amendments to limit the information that is available to these advocates -- you've got a chip on your shoulder -- you've come back and just opened it wide open by including observation in your new section 25.1. You're entitled to all the peer review documents, all documents held by the facility that may pertain to the operation of that facility, ie, a hospital. Wait till hospital boards hear about this.
I hope the people of the province are watching the television now and will get on their phones and start screaming to their MPPs that you do not want Big Brother in the hospital beds of Ontario and in the nursing home beds of Ontario. It's disgusting.
I have a question for Mr Malkowski. How is peer review going to work if the advocate has access to the records? That's a confidential system that only works because it's peers. It's medical practitioners reviewing other medical practitioners without interference from the outside. Now the advocate has access to those records, for what reason I don't know. You've taken out in these amendments the reasons an advocate had to have to have these records in the first place. Now they don't appear to need any reason. Just go ahead, if you're disabled, not just vulnerable, but any disabled person; and we're all disabled at some point in our lives and we're probably disabled when we're in hospital. So I would say that under this broad definition you now have access to everybody's records in hospital, not just those who have been deemed to be vulnerable.
This is ridiculous and I think the parliamentary assistant to the Minister of Health should speak up here. This is damaging to the health care system. You can't sit there and let Mr Malkowski -- because he's got a chip on his shoulder and he's somehow got one aim in mind and that's political, systemic advocacy, because he has a suspicion or he believes that health care providers can't be trusted in this province and the rest of the government believes that, then you damn well should get yourselves out of office before you destroy the health care system in this province.
This legislation, like so much of your tax legislation and so much of your labour laws, really, folks, in the long run hurts the people you pretend you're going to bat for, hurts your interest groups that you're so caught up in paying back with this legislation. This will hurt the health care system. It guts any confidence that health care practitioners might have had in your ability to run the government for the next two and a half years and it's very, very damaging.
I'll have more to say, but I specifically want to know how anyone figures peer review's going to work after this. I want to know why you want such wide-sweeping powers to have information on individuals in facilities. I don't see the need for it. I want to know why "vulnerable persons" is being taken out and it's being expanded to cover every senior citizen in the province and everyone who's deemed disabled, which I would say is every Ontarian who ends up in a health care facility. Why do you need these wide-sweeping powers?
Mr Gary Malkowski (York East): Just for the record, I would like to respond very directly to both opposition parties and their concerns. I think there have been a lot of misunderstandings that have occurred and I think it's very important that the members of the opposition listen to clarification on these amendments and I would challenge you to realize that the attempt is certainly to help vulnerable people. There is a real need out there.
This legislation is greatly needed and access to these records is critical in order to protect vulnerable people who have a right to that protection and that has always been my point. That is our intention. I'm concerned that both members are not supportive of vulnerable people and I have to come right out and say that. The legislation is clearly saying that --
Mr Jim Wilson: That's absolutely unfair. That is absolutely crazy.
Mrs Sullivan: Point of order, Mr Chair.
Interjections.
Mrs Sullivan: We are only for good legislation in Ontario. He is impugning our motives. That's out of order.
The Chair: Order. Mr Malkowski.
Interjections.
The Chair: Order. Mr Malkowski.
Mrs Sullivan: He is out of order, Mr Chair.
The Chair: Temper your remarks, please.
Mr Malkowski: I'll ask legislative counsel to clarify the intention of these amendments, and I would like the opposition to listen carefully to the explanation.
Ms Carla McKague: Let me take the sections here one at a time, starting with section 24. The purpose of the amendments to section 24 is twofold. One of the two, if you look at subsection 24(4.2), is to emphasize something already contained in the legislation, that in no case will an advocate get access to a vulnerable client's record if the vulnerable client doesn't want him to. It doesn't matter whether the client himself is capable of consenting to access; he's always deemed capable of refusing. If there's an objection from the vulnerable person, the advocate will not get the record.
Subsection 24(4.1) has quite a different purpose. Subsection 24(4.1) is there to fill in what appeared to be a gap in the section. This section deals with two different kinds of capacity. It involves capacity to instruct an advocate, and it involves capacity to consent to access to a record.
Different subsections provide different ways for an advocate to get access to a client's record. Subsection 24(1) provides that the advocate may access the record on the consent of the vulnerable person. That, of course, requires the vulnerable person to be competent to consent to the access.
Subsection 24(2) provides access in the non-instructed advocacy situation where there's a risk of serious harm and the advocate needs to get to that record in order to prevent serious harm.
Subsection 24(4) deals with access where someone else is instructing the advocate because the vulnerable person isn't capable of instruction. What we did not have contained in this section until this amendment is the quite plausible scenario of an individual who is capable of instructing an advocate but not capable of consenting to access to records. There was no way in this section that the advocate could get those records, because the person himself, though instructing, wasn't capable to release them. You couldn't have a substitute release them, because the substitute had to be instructing under subsection 24(4).
All this does is say that where you have someone who is personally instructing the advocate but not competent to consent to accessing records, you can take a substituted consent to get to the client's record. That's the entire import of subsection 24(4.1).
Mrs Sullivan: On a point of order, Mr Chair: Counsel has attempted to make this amendment sound quite reasonable. Unfortunately, if that is the entire intent, then the drafting has been subject to, perhaps to be kind, sloppiness from enthusiastic amateurs, because the counsel has conveniently missed the point that in fact the lead-in to subsection 24(4.1) does not include the fact that the advocate can have access to documents and to records whether or not the advocate has reasonable grounds to believe there's a vulnerable person who is incapable of giving or refusing consent, whether or not there's a serious risk of harm and whether or not the access to the record is necessary to provide advocacy services.
That is specific in the interim paragraph, which reads, "and if the advocate is not entitled to access under subsection (2), the advocate is entitled to have access to the record...." In fact, I believe what counsel has done is duplicitous; it is misleading this committee.
Ms McKague: If I might respond, subsection (2) is a very specific provision. Subsection (2) is where there is risk of serious harm and the advocate may access the record without consent.
What this deals with is the situation where there is not risk of serious harm, where there is in fact a client instructing the advocate and where the client is unable to consent to accessing the record. It reads, "if the advocate is not entitled to access under subsection (2)"; in other words, access without consent because of risk of serious harm. Then "the advocate is entitled to have access to the record" with one of the specified substituted consents.
The Chair: It seems what we have here is a difference of opinion on the interpretation and that's why we're debating this right now.
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Mr Jim Wilson: I just want to clear up a point here. I'm pleased counsel's giving an explanation of section 24 here. We don't have such a problem with this section. My remarks pertained primarily to the next section and some of the other amendments that come in, where the commission is given tremendous powers to bestow upon advocates. I know counsel will get into that shortly.
For Mr Malkowski to accuse us of not being supportive of vulnerable persons is absolutely disgusting, that he would even say that. If he wants to get committee members upset, that's a very good way of continuing to keep us upset. I don't have any problem. I understand this section very well and in cases where the --
The Chair: Thank you, Mr Wilson. We do have a fairly lengthy speaking order here and we are debating the whole package, so if you would like to get back on the list again, could you please indicate.
Mr Jim Wilson: I thought you had me on the list.
The Chair: Again? If legal counsel would like to proceed.
Ms McKague: Should I continue, Mr Chairman?
The Chair: Please.
Ms McKague: Section 25 is, of course, the section that deals with access to records for purposes of systemic advocacy. In fact, it's the belief of our office that we have substantially narrowed access to records in this section. The issue with which we were concerned in redrafting the section was the problem faced by the operator of the facility or a controlled-access residence or a program.
When the commission gave consent for access for the purposes of systemic advocacy to records relating to vulnerable persons, there would in fact be a burden on the operator of the facility or whatever to determine which of the people in that facility were vulnerable persons so that access could be given. Not everyone in a particular nursing home would be a vulnerable person. Not everyone on a particular psychiatric ward would be a vulnerable person. There was a real difficulty as to how to decide which records the advocate could access. There were concerns expressed by the opposition, in fact, about the potential invasion of privacy of persons who were not vulnerable because of the personal information available in these records.
In order to solve that problem, what the government amendment does is, first of all, take that burden off the administrator of the facility by saying, for purposes of systemic advocacy, with the commission's consent -- and remember, this is always there -- the advocate may have access to all records relating to people who are disabled or people who are 65 or older, but a concomitant amendment says, "however, not to any personal information." In other words, the commission is not allowed to get personal information about anyone in dealing with systemic advocacy. We might point out that exactly this same kind of access is routinely given under a number of statutes; for example, research. Under the Mental Health Act, researchers may have full access to clinical records in psychiatric facilities, without personal information; in fact, in some cases with the personal information, so long as that isn't reported elsewhere.
So what we've done is try to take the burden off the operator of the facility, program or residence. And remember, those are the records we're talking about. It has to be in a facility, residence or program where the commission has already agreed that there is a good reason to carry out systemic advocacy. We've said in order to take the burden off the operator of deciding who's vulnerable and who isn't, we will allow access to all records but no personal information. That's the import of the amendments to 25 and a concomitant amendment to 27.
As far as 25.1 goes, this again is in response to opposition concerns that the former wording was too vague, too general. It specifies three types of documents which could overlap that should be available. It also says that nothing in administrative records, which is what this section is talking about -- that the advocate is not entitled to personal information in those administrative records.
It defines it as "orders, directives, rules, guidelines, policy or procedural manuals or similar documents" -- which are obviously of great importance to an advocate; if you have a client who is being secluded, for instance, it's important to have access to the policy of the institution around seclusion in order to know whether that policy is being followed -- documents that may be made available to the public under the Freedom of Information and Protection of Privacy Act and similar documents in facilities that are not covered by that act. I believe perhaps Mr Wessenger had some further comments on 25.1, but that is the intent of the legislation, to make it very specific, very definite as to what documents are and are not, and that's a direct response to the opposition concern about the vagueness and generality of the previous draft.
Mr Norman W. Sterling (Carleton): I have some questions about the amendments, particularly to section 25. If we are giving access to the commission for the purposes of systematic policies or practices that may be detrimental to vulnerable people and we're excluding all personal records with regard to anybody who is 65 or whatever, according to what I read, what records are they going to be permitted to see?
Ms McKague: Not personal records, personal information contained in the records. For example, let us take an extreme example, a hospital ward in which people are being routinely secluded and restrained, in violation of good policy and the law. The advocate, if he or she got the commission's approval to investigate that situation, would have access to the records but not to the names. They would not be able to determine which particular individuals, for instance, had been improperly secluded, but they would have the information without the names and they could demonstrate that 12 people had been treated in that way. They just wouldn't have their identities.
Mr Sterling: I haven't had an opportunity to read all the amendments. Can I ask you too if these most recent amendments, which I think would be of great concern to our hospitals and to our other health care facilities -- have you consulted with them with regard to the particular wording involved in these amendments, so they would have an opportunity to respond? My greatest outrage at this particular point in time is that very late in the game you're proposing some new amendments which are very sensitive in terms of how hospitals and health care providers or facilities control information. The most serious problem I see is, are these people going to have another opportunity to appear again in front of this committee to comment on these sections? I don't think we have time, according to our schedule, but I think in fairness to those health care facilities, if you're going to revamp the information sections, really fairness only says that we have to allow those public hospitals, the OHA, to come back and comment again. Could I ask if there was consultation?
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The Chair: If I may, Mr Sterling, you realize that there is no available time for that, and right now on --
Mr Sterling: No, I'm asking if --
The Chair: I'd like to make my ruling on subsection 25(1). It is out of order. It allows the advocate access to information on a group of people not necessarily vulnerable and not contemplated in the scope of the bill.
Mr Sterling: Can I ask the question of whether or not there was consultation with regard to these amendments? Do they know about these?
Ms McKague: I cannot respond to that. I'm sorry, I don't know the answer. Perhaps one of the members or one of the policy people would like to respond.
Mr Mark Morrow (Wentworth East): On a point of order, Mr Chair: Am I to understand that you just ruled 25(1) out of order with only hearing the two opposition parties without hearing the government side?
The Chair: It has nothing to do with it. There is no debate. You can appeal the ruling to the Speaker. No debate.
Mr Morrow: Thank you.
Mr Paul Wessenger (Simcoe Centre): Could I have some clarity, Mr Chair: 25.1 is ruled out.
The Chair: Subsection 25(1).
Mr Wessenger: Which motion are we talking about? Is that the one removing --
Interjection: "Vulnerable persons," and adding everybody else in the province.
Mr Wessenger: Just the one removing "vulnerable," not the other one?
The Chair: Subsection 25(1).
Mr Wessenger: Not 25.1, okay, fine.
Mr David Winninger (London South): On a point of order, Mr Chair: Your ruling was on 25(1) or 25.1?
The Chair: Subsection 25(1).
Mr Winninger: Okay. It's important that we know that.
The Chair: Is there any response to Mr Sterling's inquiry?
Mrs Sullivan: I can respond to that, because this morning I spoke to the Ontario Medical Association, the Ontario Hospital Association, the College of Physicians and Surgeons and the Ontario Nursing Home Association. None of them had been advised of any of these amendments until I put them to them and faxed them to them.
Mr Sterling: What are you going to do about it? What is the government going to do about this? You cannot, at this late date, start to fool around with major parts of the bill and expect it to have any kind of support out there in the community.
I suggest you go to the House leaders, Mr Chairman. I suggest we adjourn these hearings, go to our House leaders, ask them for time for public input into these amendments to these sections and postpone the whole process so that we can deal with these in a fair and democratic way where people have the opportunity to come in front of the committee and deal with the legislation that's in front of us.
Mrs Sullivan: On a point of order, Mr Chairman: I have a motion to put before the committee. I move that the Chair of the standing committee on administration of justice, on behalf of its members --
The Chair: You can't move a motion on a point of order.
Mrs Sullivan: Then I'd like to move it without a point of order and I now have the floor.
The Chair: We have a point of order from Mr Wessenger.
Mr Wessenger: Yes, Mr Chair. What motion are we discussing now?
The Chair: When we started, we agreed that we would start on the package of amendments that was introduced by the government yesterday. When Mrs Sullivan started the discussion, she said she was going to speak on the whole package.
Mr Wessenger: But technically we ought to be speaking on one section. Am I quite correct? We should be dealing with section --
The Chair: We're on clause-by-clause. We are on --
Mr Wessenger: I would ask that we deal with section 24 and then proceed as normal on this matter, deal with section by section.
The Chair: It was my impression, in speaking on 24(4.1) and (4.2) that Mrs Sullivan was going to make comments on that relating to the rest of the package. That was my impression. But yes, we are debating 24(4.1) and (4.2) at the moment.
Mr Wessenger: Yes, that's fine. I just wanted that for clarification.
Mrs Sullivan: Mr Chairman, I have a motion.
The Chair: Mrs Sullivan moves that the Chair of the standing committee on the administration of justice, on behalf of its members, report to the Legislative Assembly with respect to Bill 74 as follows:
(a) That the members, having proceeded to examine Bill 74 clause by clause, are unable to complete the work assigned to them by the assembly in the time allotted by the motion of the House;
(b) That government motions altering the policy of the bill have been presented to the committee for consideration in the final moments available for consideration of the bill;
(c) That opposition and government motions for amendments have been stood down by the parliamentary assistant for clarification or redrafting and have not been brought back to the committee for consideration;
(d) That committee recesses, prompted by the government's uncertainty over the policy intent of the bill, have caused undue delays in the committee's work; and
(e) That the committee is unable to exercise its legislative duties with diligence due to numerous conflicting amendments and public concerns; and further that
(f) It is the recommendation of the committee that due to its deficiencies in policy and drafting, the minister withdraw Bill 74 in its current form, clarify the policy intent and introduce a revised bill for appropriate consideration by members of the Legislative Assembly.
Debate on Mrs Sullivan's motion.
Mrs Sullivan: I think it's very clear that throughout the process on Bill 74 there have been obfuscations, changes in policy, concerns about the policy intent of the bill, and indeed this last scenario where an amendment which changed the entire policy intent of the bill means that we cannot do our duty to the assembly in drafting laws, to the people of Ontario in drafting laws. We cannot do our work appropriately.
The bill is badly drafted. Through the entire process here we've seen the influence of well-meaning people who have had input, but unfortunately the bill will not stand up to public and legislative scrutiny. We believe that if it's the government's intent to have an operable piece of legislation, the government should go back and begin at the beginning.
Mr Winninger: I'm really quite disappointed at the level to which this discussion has sunk this morning. I know we all share an interest in vulnerable people. I know we may have ideological perspectives on this that may not be entirely consistent.
I sat here and listened to a very angry diatribe from Mr Wilson and I've heard a lot of rhetoric this morning, but I thought -- and I think we should be mindful and the viewers watching these proceedings should be mindful -- that we agreed to come back to Bill 74 because we thought we could get something accomplished, that we could perhaps tighten up some sections, that we could improve the legislation. I think we all agree this is very progressive, cutting-edge legislation and there are areas that could be perfected.
Yet we come here this morning, intending in good faith to engage in productive debate, and now Ms Sullivan comes forward with a motion, and I don't think she just scribbled that out now. I think she arrived with that this morning, which would --
Mrs Sullivan: I certainly did, after I read the amendments you put forward.
The Chair: Order.
Mr Winninger: -- jettison the discussion and proceedings on this particular bill. I can't, in my own mind, reconcile that kind of motion with an intention to deal with this legislation in good faith.
I look at these amendments that have been brought forward today. I see we've addressed issues that have been raised at previous proceedings in regard to warrantless entry, in regard to consent of the vulnerable person to release of records, in regard to release of personal information, in the context of systemic advocacy. I think we've bent over backwards, in a spirit of compromise, to address the concerns registered by the opposition and many of the presenters before the committee.
I can't say how disappointed I am that now this proceeding is being used for, I think, blatantly partisan purposes to jettison a very good bill that's going to assist a lot of people in society -- I won't call them disabled and I won't call them frail elderly over 65, because that was ruled out of order -- but vulnerable people in society who have been waiting a very long time for this legislation to be passed. I strenuously oppose the motion of Ms Sullivan, and I'm disappointed that we can't be a little more constructive about the way we manage this legislation.
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Mr Sterling: You know, having sat here during all the hearings we've had on this piece of legislation and the other pieces of legislation, we've remained as constructive as you can possibly be in opposition, which is difficult because of the nature of the parliamentary forum that we're in. But there does come a point where you lose confidence in the ministry that is putting forward a piece of legislation. After continual stalls, changes and rethinking on various different parts of the bill, you begin to wonder whether or not the central thrust, the intent the government had in the beginning, is together any more.
When you're dealing with information, when you're dealing with the rights of a commission which is going to be out there, basically accountable to no one but biased in its makeup -- and that's a choice which is being made. You have a biased commission out there which is going to be a natural adversary of health care providers. We're trying to decide at the very last moment what this natural adversary to health care providers -- what kinds of rights or powers they have to enter their natural adversary's environment without another consultation or without any consultation as to how these new rights are going to affect their natural adversary. I find this pretty disturbing. I really do.
I don't know whether going back and redrafting the bill is the answer, but it's becoming more and more confusing to us in the opposition as to whether or not people have really sat down and thought this thing through carefully and set out what is the balance of powers that are going to exist between these natural adversaries that we are setting up. I just have no faith in the ministry having thought this through or consulting with the players who are involved.
When government goes forward and creates new rights, which is basically what we're doing here -- we're creating new rights in the hands of some individuals who are not going to be responsible to me in this legislative committee; they're going to be responsible to some minister who has failed to appear in front of this committee. If you're doing that, you have to be very careful. You're providing the commission with some pretty dramatic powers to walk into these institutions and say, "We want your records."
I haven't even engaged the legal counsel for the ministry in questions like who's going to be responsible for hiding the identity of the people whose records the commission or the advocate can have a look at. How do you know what records they're going to go after? Does the facility require two sets of records, one with blanked-out names or no identities or no way of identifying the health care records with a particular individual? What happens when there is only one patient with whatever the particular ailment might be within the facility? How do you protect the privacy of that individual? There's a whole host of questions. I'm sure groups like the Ontario Hospital Association and some of the other long-term care facilities, which I understand will be affected by these new changes being introduced at this late date, are going to be affected.
At this point, I really have lost confidence in this ministry knowing what it's doing. I don't think they know what they're doing. They're not only going to set up an adversarial system where they don't understand what powers they're giving to both sides, but they're going to blow about $30 million or $40 million on this.
Mr Jim Wilson: At least.
Mr Sterling: I just have a lot of trouble weighing the money and having any confidence that they know what they're doing, that they're going to do anything for vulnerable people save and except set vulnerable people against the health care institutions that are providing the treatment for those vulnerable people. I think that's what's happening and I'm very concerned about it.
Mr Malkowski: For the record, I'd like to respond to the opposition's concerns regarding Mrs Sullivan's motion. The government members have made every effort to listen and respond to the concerns raised by the opposition in terms of amendments. We have given extra time. We have been more than willing to give additional time to work on the bill. We have worked very hard to bring in and strike the balance that is needed for vulnerable people, for people over the age of 65, balancing the rights in order to meet the needs of vulnerable individuals and health care professionals.
I think opposition members have tried in many ways, with delaying tactics, to stall very important legislation. I think we have to remember, if we quote from Father O'Sullivan's report, that he said clearly that we must critically have legislation that will protect vulnerable people from abuse, from neglect, as much as possible. There are many vulnerable people out there, many people over the age of 65, who have been asking for this legislation and wanting its time to come.
I would ask both opposition parties to reconsider cooperating and working together to develop a very needed balance so that we can indeed focus on the needs of vulnerable individuals. I think it's very unfortunate that this cooperation has not existed. I feel the government has made every effort to do so and it has not been successful.
Therefore, I will have to say also that I oppose Ms Sullivan's motion. I do so for the sake of vulnerable people and those people in society who are waiting for this legislation to go through as soon as possible.
Mr Jim Wilson: I'll try to be a little calmer than I perhaps was the last time I spoke. Two words come to mind when looking at this bill and the amendments that were brought in by the government within the last 24 hours. They are "consultation" and "fairness." They're words that this government ran a campaign on and continues to use daily. If you want to talk about diatribe, that's the basis for the NDP crap they're dishing out to the people of Ontario.
The government admitted this morning that it's not consulted with the major stakeholders in any way whatsoever in drafting these new amendments. Mr Malkowski and Mr Winninger tell us these new amendments are an attempt to appease the opposition, to tighten up the legislation, to address our concerns. We're sitting here telling you that they do not address our concerns, that you've not consulted with the major consulted with the major stakeholders and that you've not really listened. I think what you've done is you've listened to your one group, and that's people who are probably going to be on the Advocacy Commission, as the Ontario Advocacy Coalition. You're captured by them.
Their argument that they need sweeping powers in order to do systemic advocacy -- there's a reason their powers, the powers of an advocate, now are limited under the Mental Health Act and under the freedom of information act. There are good legislative reasons. Sean O'Sullivan understood those reasons, and I think he'd be rolling over in his grave if he knew that in order to give other people new rights, to give this biased commission, this army of advocates, new rights to act on behalf of vulnerable people, which is the language the government uses to try to sell this legislation, you're trampling on others' rights.
There are so many overrides in this legislation that you're actually trampling on vulnerable persons' rights, some very fundamental rights, and you're really not asking the question, do all these people, do people in hospitals, do family members, do disabled individuals, do the vast majority of those people really want the state to interfere to this extent in their lives and have access to information about their lives?
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I don't buy the argument that somehow institutions will be able to sufficiently abide by this legislation and ensure that the advocates only receive information that doesn't contain personal identifiers. I find that problematic. I find that expensive. It seems to me what's missing and what was missed in this legislation is the balance.
We had some safeguards that spelled out reasons that advocates needed for this information. It seems to me with the new amendments there aren't those reasons any more. We already know what the answer of the commission is going to be when the advocate goes and says, "I need information to do some systemic advocacy," which to me looks like political advocacy. It doesn't address the question of resources.
Again, to do a little aside here, we go back and even with all this information, even when they identify problems in the system, you're taking $40 million to $50 million out of the system to set up this commission and do the things required in this act. You don't have the resources to correct these problems. We already know. We get calls every day, and letters, particularly as Health critics in opposition. We get all kinds of things that need to be addressed in our social service and health systems. The problem is there aren't the resources.
The problem with this legislation is you're trampling on other people's rights to really, I think, respond to a campaign promise. I re-read the promise that was made by the NDP. I think it was made to a very select group of people, and I do not think this legislation is good legislation. I think Mr Sterling's point is, who did you consult with in dealing with these new amendments? Mrs Sullivan correctly spent the time this morning talking to the groups that you have to have cooperation from in order for this legislation to work, and they're very much opposed to what they've seen in these new amendments.
I support Mrs Sullivan's motion. It goes back to what I said in the House last year in speaking about this legislation. It should be withdrawn and redrafted. We're back to where we started, except it's worse. What's happened in the last 24 hours is beyond what I thought you could possibly do in terms of destroying, I think, any good intent you had in this legislation. When you talk about being on the cutting edge, what you're doing is cutting off the heads of health care providers, people who have to run these institutions, and you're again sending out even a more powerful negative message that, "We don't trust you."
Now, are you going to give --
Mr Morrow: On a point of order, Mr Chair: Can we please ask Mr Wilson to speak to the motion?
Mr Jim Wilson: I am speaking to the motion.
The Chair: He is speaking to the motion, Mr Morrow.
Mr Jim Wilson: And I'm doing it as loudly as possible, so if you can't hear me, it's not my fault.
You're cutting off the heads of people who have to run these institutions. You're imposing your will on them, again without reason, and I think you're into some really serious problems down the road.
If I was an administrator of one of these institutions, I'd be tempted to just simply quit and say: "Why don't you have the advocates run the system? You think they have all the bloody answers," even though we don't know what an "advocate" is because it's not defined correctly in this legislation, or in health care institutions, let's just have the rights advisers do the surgery. Let's have the rights advisers set the leg.
That's essentially what you're doing in this legislation. I think that's what the effect is and I think that's what the service providers are telling us. You've done everything you can in this legislation to shut out service providers, and again, Mr Sterling was able to find out this morning that you haven't even bothered to consult with them.
I think your Premier would be ashamed of what's going on in this committee if he really wants to talk about fairness and consultation. There's nothing fair about this legislation. It's biased, its Big Brother at its worst.
I fully support this motion and figure we're no further ahead now, after all the public hearings, because you people don't listen. You have an ideology that you stick to. It seems to me you have a very narrow interest base, which you pamper, and you look at the extremes in society. You look at the worst possible scenarios in order to make legislation.
Yes, government is there to protect the weakest in our society. We all believe that or we wouldn't be sitting here today and we wouldn't have run for Parliament. Yes, society is judged on how it treats its most vulnerable people. No one's going to argue those statements -- it's like talking about motherhood -- but to mask this legislation in those types of statements is a falsehood. You're not being honest with the people of Ontario.
Your legislation goes far beyond helping vulnerable people. Your legislation says: "We don't like the world as it's been running. We don't trust health care practitioners or professionals." In other areas, we certainly see you don't trust business to create jobs. This lack of trust permeates this legislation and I think you should withdraw it.
I think, at the very least, we know it's possible to get agreement from the House leaders, because we've already had agreement once from the House leaders, to show some flexibility in time.
It's in your best interests, so when we come to government in two and a half years, we don't have to gut everything in this legislation. It's in your best interests to set up legislation that not only helps the vulnerable but at the same time doesn't do more damage to the vast majority of people who do not want this infringement on their lives.
You shouldn't be taking money and resources to fix systems when we already know what a number of the problems are in our systems. We don't need a new army of advocates and a new arm's-length commission telling us what's wrong. I think we could simply have a few more weeks of public hearings. If we ask the right questions in terms of how to fix the system, what areas of the system are broken and how much money will be required, you'd be a far better government. You'd be doing a greater service to society. You'd be doing what you were elected to do, rather than pamper simply narrow-minded interest groups, which we know you're doing because you've stated that you refused to consult on these new amendments with the major stakeholders in this.
Mr Malkowski: Mr Chairman, on a point of order: Since the motion, subsection 25(1), has been ruled out of order, we are going to have to withdraw some of the other sections and amendments: subsection 25(2), subsection 25(2.1), as well as section 27. We will then also have to amend another section, section 24; we'll have to take out subsection (4.3).
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Ms Jenny Carter (Peterborough): I came here this morning thinking that we were cooperating with the opposition members in continuing to discuss this bill and, in particular, the motions the government has brought forward. We have become sidetracked on that. We now seem to be having a general discussion. So be it.
If we do this, obviously we're less likely to get through the specific points we could have been discussing. It seems to me that the motions the government has brought forward were in fact an attempt to accommodate some of the points that had been raised previously. Maybe the opposition doesn't want to concentrate on them for that reason.
In section 24, for example, we're merely solving a problem that would arise in some cases where an advocate would have had no means of accessing information, which would have meant they couldn't carry out their function. I should also underline that the wider access to information that was contemplated under the section that's now been ruled out of order would have involved no personal revelations and, conversely, that the personal access to information under section 24 can only take place with the consent of the vulnerable person. I do not see what the problems were there.
The question of Big Brother and adversarial relationships have been raised by the opposition members. They have brought these terms into this discussion; we haven't. May I put to them the obvious point: that nobody, whether health care givers, family or anybody else, is adversarial as far as this legislation goes, unless they are in some way infringing on the vulnerability of persons in their care. Somebody carrying out their duties or serving their family members in the way most of us do would have nothing to fear from this act and, in fact, I'm sure would be glad of it. This act offers help to the families of vulnerable people and to people who want to carry out their duties in a fair and reasonable way within institutions.
It seems to me that, for all their protestations to the contrary, the opposition members have no concept of what we are really trying to do here. There are people in this province, many of them vulnerable and not receiving the rights to which they are entitled.
I don't know whether any of you have read the Lightman report, for example, but he talks about the bill of rights for people in unregulated accommodation. He has found people who are having their allowances stolen, who can be locked out of their accommodation, who can have their belongings stolen, who have no rights to receive guests, who have their mail opened; the list goes on and on. There are people being treated in these kinds of ways in this province and this legislation is to try to get access to those people to hear what they have to say and to try to solve those problems.
For example, when we're told that access is invasion of privacy, I really wonder whose privacy we're talking about and whether we couldn't look at this the other way around and say that the right of some people to receive guests or to speak to people to whom they wish to speak is being infringed upon if we don't have such rights.
So I certainly repudiate any suggestion that we should withdraw this bill. I repudiate Mrs Sullivan's motion and I regret that we have not spent this time in discussing the more specific points we have raised in connection with this bill.
Mr Alvin Curling (Scarborough North): There is no doubt that we need proper legislation to protect people who are most vulnerable in our society, and that's the reason this bill is here. That's the reason all of us, as members sitting on this committee, are here and take that deep interest in it.
When Mr Winninger spoke about Mrs Sullivan having this all planned a long time ago without reading the amendments, long before these amendments came in, he's completely wrong. If there's anyone on this committee, and I respect all my colleagues here, who has taken a very keen interest in diligently going through every detail of this bill, it is Mrs Sullivan. As a matter of fact, you can see, as we in our caucus demonstrated, we have allowed her to say all the things to be said because she said it very well and said it the exact way we all would have said it in our caucus. I was completely shocked to note how Mr Winninger took that position, that before the amendments were being looked at she had presented this motion.
I think the problem here is that Mr Winninger himself has not read the motion, because if he read the motion, it talks in detail about why this bill should be withdrawn. As a matter of fact, just in the debate, the point of order that Mr Malkowski brought in, having to withdraw this and withdraw that; as a matter of fact, if we continue to criticize the inadequacy of this bill, we've been extremely successful in him withdrawing and the government withdrawing most of what is there because we find it inconsistent and confusing; and we will point that out, as the Conservatives have pointed it out, and we have pointed this out.
We're trying to save this embarrassment of the government, which has a bill and by the time we're through there'd be no bill. So we're saying pull this back, in support of this motion, pull this bill out and maybe we should start all over again.
Many of the interest groups have called us, and we're talking about the professionals and the doctors who have called us, and said that maybe the government has stopped listening and maybe we would listen and bring this forward, and this is what the bill is all about. We've told you that many of the professionals are extremely concerned that this bill going forward would jeopardize the proper, professional workings unless it is properly drafted. So I of course will support this, and it's not a matter of opposition. We hope that the government would have some sense in seeing the light and maybe supporting this and not a matter of one winning or the other.
Furthermore, when we speak about interest in this bill, this committee, the opposition here, has asked many, many times to have the ministers come forward to represent the government's case. They have refused. As a matter of fact, if you'll allow me, Mr Chairman, I'll just read three lines of the response coming from not even the minister herself but the acting executive assistant to the Minister of Citizenship, who should be here. "The minister's schedule does not allow her to attend on the dates requested." Remember, though, that it's the government, as you know, Mr Chairman, which determines the time that we meet here as a committee. "She would be pleased to consider other dates as soon as you are able to advise if further hearings are necessary."
The minister has not even attended here. Who has shown more interest, Mr Chairman? That is why we feel that if the government is not serious about this, maybe it should withdraw the bill and have a proper one. Maybe the minister is not serious. Of course, we're sure Mr Malkowski has deep interest in that. We want the minister here. We want the minister to respond to some of the political questions that have been asked because that's what she's elected to do. But she has refused to come here.
You have seen times, Mr Chairman, when we ask for counsel advice and we get that, and when we ask for policy advice, we get that. When we go to the political advice, there is none. They can't respond. Or the attempts by the parliamentary assistant or some of the members -- and they make, of course, great attempts to do that -- fall short. We want the minister to be here.
So when we talk about interest and Mr Winninger talks about Mrs Sullivan's motion, that is well-thought-out and we know what we're doing and we're giving you a chance to support this so we can have a proper bill, the proper legislation to protect the most vulnerable people.
The Chair: On Mrs Sullivan's motion, Mr Sterling.
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Mr Sterling: I just wanted to take great opposition to Mr Malkowski's statement that we have been stalling these pieces of legislation. Nothing could be further from the truth. We believe the proper input was necessary, and I believe that's why the government House leader acceded to our request to have further public hearings, and quite frankly, if anybody had been following the activities of this committee over the last three weeks, they would have to come to the conclusion that on any single issue, save and except for this morning, all parties -- and I include the governing party, and it's partially because of your chairmanship, Mr Chairman -- the debate has been fairly succinct. There have been issues on which we feel very strongly and perhaps the debate went on a little longer, but for the most part we've dealt with I think probably over 100 amendments with regard to all of these pieces of legislation and I thought, quite frankly, that from February on, when we were dealing with this very complex piece of legislation, all people on all sides of this committee had dealt with it in a fair way and in fair time.
The longest delays we've had, quite frankly, have been at the request of Mr Malkowski himself. He has requested I think 10 or 12 different recesses or adjournments which have been lengthy adjournments, and if anyone takes responsibility for postponing this legislation it's he himself, it's because of his ministry's incompetency and because they don't know where they're going.
That's our general uneasiness with this piece of legislation. We do not get the impression that the government knows what it's doing with regard to setting up this Advocacy Commission. For that reason, I support Mrs Sullivan's motion at this time, but should it fail, we will continue to act, as we have in the past, in a constructive manner to try to do the best we can.
Ms Zanana L. Akande (St Andrew-St Patrick): I too am speaking in opposition to Ms Sullivan's motion. I'm frankly very concerned. I'm concerned about the picture that is being painted here and the discussion that has evolved. I'm concerned about Mr Wilson's description of Mr Malkowski's motive being indicative of some grudge he has from some situation he's been in, a person who has demonstrated his concern through bringing forth this legislation and trying to work with the opposition parties as he has.
You speak of consultation, and I often wonder and worry about the use of that word. I think sometimes people assume that it means "You hear what I say and you do what I suggest," and it does not. It means simply that we listen to the very many words and advice of all the people.
We have listened to the medical profession and many different levels of the medical profession. We've listened to advocates, we've listened to families of vulnerable people and we have listened to those vulnerable people themselves. Their collective stories have indicated to us that it's extremely important that we very expeditiously move towards passing this legislation, that there are people out there who are seriously at risk and who are desperately in need of advocates and who need that service now, not later.
You say that you're concerned about this legislation. Your disagreement with policy does not indicate its deficiency. It indicates that we are in disagreement and that we see the situation differently from the way you do.
I would go back to what Mr Curling said. He is interested in saving the government because he fears that we will be embarrassed. I am interested in saving those people who need those services, those people who require the services of advocates, and I would put to you that we have come here this morning in cooperation and in a decision to listen once again to your concerns in an effort to bring forth the very best possible legislation that can be brought forth collectively.
This is not a time for adversity. This is not a time for opposition. It is a time to work together and to focus on those people who will most benefit. Yes, I speak in opposition to this motion.
Mrs Sullivan: I'm sure this will be the wrapup on this motion. I wanted to be very clear that, when Bill 74 came forward, both opposition parties voted in favour of the principle of the bill. We believe firmly and strongly that there should be a backup system, if you like, for vulnerable people, that there should be a support system, one which ensures and helps vulnerable people to support themselves, to access their rights and to gain their entitlements.
We believe this bill is fundamentally flawed, and the amendments which have been put forward, confusing and conflicting as they may be, in fact create more problems than they solve. The bill will not provide support for vulnerable people. It creates an adversarial atmosphere between the advocate, who will act in the shoes of the vulnerable person, and other people who have to respond in making things better for the vulnerable person. The health care institution, the vocational training premise, the educational institution and other places where advocacy is an important part of changing the life of vulnerable people will in fact be approached, as a result of this bill and the principles behind this bill, in an adversarial way, as enemies.
I think that's wrong. What we want to see is a redraft of the bill. We believe the bill is a useful one if done properly. The worst thing that could possibly happen and the worst support for vulnerable people is a bill that isn't right. If you're drafting legislation, you look at the problem and you define the problem. I think that has been done. I think people know what the problem is for certain people in our society and that we want to reach a solution in terms of coming to terms with that problem. Certain people are not able to access their rights. Certain people are not able to access their entitlements; certain people are not able to express their wishes and to have them made clear in a way that other people can respond to or act upon them.
We know there is a problem. We've seen it not only in the Lightman report but in other reports, whether it's reports provincially, nationally or internationally with respect to the disabled. We've seen a quite extraordinary book recently. It's Pat Capponi's book -- it's called Upstairs in the Crazy House -- and talks about some of the issues associated with the psychiatric survivors. We read a book, called Madness in the Streets, which parallels the issues in the American system that we faced as we were moving psychiatric patients outside of institutions without an appropriate infrastructure.
We know there are changes which should be supported and underlined for people who are physically and mentally disabled and developmentally disabled, the simplest things. Ensuring that there is access into a store or a school is only one area in which there has been some change, but perhaps not as much change as we want.
But if we are going to want to achieve the kind of support system we need for people who would have no other way of achieving their rights and entitlements and to have their system improved, that has to be done only in the context of a balance, and with the involvement not only of vulnerable people and people who will be speaking on their behalf or in their shoes -- depending on how you see the role of the advocate; and there will be different roles for the advocate -- but also with the cooperation and input of the facilities where they're living, of the institutions where they're receiving health care treatment, of the health care providers who know perhaps some of the nature of the vulnerability, but perhaps not all -- the balance of families and friends who live, work and support in many ways the vulnerable people -- and of the vulnerable people themselves, who will be able to speak on their own behalf to the greatest extent possible about what's needed.
We do not have that balance in this bill. We have created an approach which in fact moves the system away from that balance. It makes enemies of the family and friends. It sets them apart from the decision-making authority. It moves the employer groups away from the process by not involving them at all. It moves the health care provider away by indicating that the health care provider is someone to be suspicious of rather than to say, "If there is a bad actor in the health care provision field, let's root that out through other systems." If it's the college that should be acting, let's get at the college. But for heaven sake, have them at the table; similarly with the institutions themselves or hospitals.
I recall, I think it was about two years, when the Hospital for Sick Children had to respond to a person walking around the corridors molesting children who were in that institution. There was an outcry in the community. Ultimately, the only way the Hospital for Sick Children could respond was by invoking the Trespass to Property Act.
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We look at a bill now where we would have wanton entry of advocates without the advocate being required to identify himself at the desk. I'll tell you that the Hospital for Sick Children is not going to allow that. It has another duty, and I think we have to recognize that. They have not had the opportunity to be involved in the creating of the balance that's necessary, the cooperative approach involving the vulnerable people themselves, involving health care providers, people who work with them in support groups, families, practitioners, facilities, educational institutions, all of those -- opposition parties; we're willing to help.
We want a good bill. This is not a good bill. We need a redrafted bill. I firmly and honestly believe that. Frankly, I really hope this motion passes and that the government will pay attention to it and will come back with a bill through which all the organizations, groups and individuals who need to be consulted and who need to take part in its formation can be involved in that to create a system that works. That's how we'll have a support system for vulnerable people that matters.
Mr Jim Wilson: I just want to address, speaking to this motion, what Mrs Akande said and before her, Mrs Carter.
I have no doubt that their intentions are good, or they wouldn't be here and they wouldn't be putting in time on this committee. I have no doubt that what they believe they are accomplishing through this legislation, they truly believe. I thought Mrs Akande spoke eloquently about her beliefs and the need that's out there. As I said in my previous remarks, I don't disagree that there's a need.
But I get worried when the public has been sold this legislation as if it were going to correct some of these problems. It isn't. I think it drives a further wedge between families and their loved ones, particularly in the cases of schizophrenics. I think it drives a wedge between the health care workers who, in many cases, are sworn by oath to serve the public.
I think, as Mrs Sullivan said and as I've said many times previously, you can't sell this legislation as if it's going to help a lot of the things that we know are going to come out in the Lightman report and stories we read about every day in the paper. It doesn't do that, I guess, is the point. What it does is to set up, I think, and add a great deal of conflict in our current system. It sets up a truly adversarial system. It's the responsibility of legislators to correct these problems, not some arm's-length commission.
In the case of psychiatric patients, they have advocacy services now. What they need is further resources to correct the problems that are there in the system. When Mrs Carter talks about people being locked out of their duly paid-for residences, that's illegal. There are laws that deal with that. This legislation isn't going to correct that problem, and don't go around this province telling people it will. We're aware of those problems. We'd probably be even more effective to give MPPs some resources so that we can better deal with those in our respective areas and then be able to go to one of the ministries and say, "Here's the problem." I don't need a team of advocates telling me the problem again and again. It may make some people feel better. It makes great political speeches, but it doesn't correct the problem, and I see this as where we differ in our opinions on this legislation.
It's illegal to steal people's allowances, but where are the resources to stop the stealing? Where are the resources to educate the people who are doing the stealing? Where are the resources to give people a backbone so they'll treat their fellow human beings better? This legislation doesn't correct that problem, nor does it cure it, and I don't think we should try and fool the public that it does; you know, once again tell us this problem exists. We know it exists.
Ernie Lightman's coming in soon with his report. It exists in our own backyards and we damned well should do something about it, not mask it in more political promises and speeches about pretending to have a cure.
Landlords not living up to their obligations are a problem in this province. Psychiatric patients and psychiatric survivors clearly get abused in this area more than anyone else, but this legislation, again, is not going to cure that.
You accuse me of rhetoric. Fine, it's fair ball; it's politics. But let's not tell the people of the province that this legislation cures, or even, in my opinion, goes any degree towards curing these problems that we all know exist. They've existed longer than I've been alive. If you really wanted to help the people, you would take a step back from this legislation for a time. Tell us you've got the money to even implement this legislation. I can't help but be suspicious that this is simply fulfilling some sort of promise when there's --
Mr Winninger: Are you still speaking to the motion?
Mr Jim Wilson: Yes, because the motion deals with withdrawal.
We can't help but be suspicious when you won't even talk about the financial impacts of this legislation. We have no idea where the resources are coming from. I don't know how future advocates can even have any confidence in this legislation when they, surely to goodness, don't even know where their salaries are coming from, when they, surely to goodness, realize that if we're to set up the new team of advocates and give them these sweeping powers and give the commission these sweeping powers, something's got to give in the system.
All I say is that it's unacceptable that the government allows these evils in our society to persist: that people steal people's allowances, that landlords don't live up to their obligations and that tenants often don't live up to their obligations. It's disgusting that people are locked out of their residences. Some of the treatment people receive in even the best of our facilities at times is abhorrent, and we are aware of this. What we'll find out, probably through more advocates on the road, is that there are more problems out there.
We're aware that many of these problems now are overwhelming. We don't want to turn a blind eye to additional numbers being added to the problems. But other than dig out more problems and more numbers, I fail to see how this legislation helps. We need a commitment of resources, we're aware of the problems, as I said, and we should not be pretending that this legislation is really going anywhere towards correcting the problems that we're aware of.
That's my point and that's the premise I come from, the statement I made in the House a year ago. I too have listened and have heard the witnesses. I've heard families of Alzheimer's patients tell us this legislation doesn't help. They're past the advocacy; they're doing the advocacy for their loved ones. Where the brick wall is is the resources, the response from government to the problems.
On that note -- I think I'm probably the last speaker on this motion -- we should vote on the motion, but we feel very strongly that you cannot oversell this legislation in airy-fairy terms that are irrelevant to what the wording on the paper truly means.
The Chair: Having no further speakers on the motion by Mrs Sullivan, we'll proceed to the vote. All those in favour of Mrs Sullivan's motion?
Mr Jim Wilson: A recorded vote.
The committee divided on Mrs Sullivan's motion, which was negatived on the following vote:
Ayes--5
Curling, Miclash, Sterling, Sullivan, Wilson (Simcoe West).
Nays--6
Akande, Carter, Malkowski, Morrow, Wessenger, Winninger.
The Chair: Being that it is close to the hour of 12 o'clock for a recess for lunch, I might suggest that the various groups get together to discuss what we're going to be doing this afternoon. We still have Bill 110 to do and this is the last day we will be meeting.
Mr Morrow: I think at this time it might be wise, just before we adjourn for lunch, to ask for unanimous consent to come back to Bill 110 this afternoon.
The Chair: It was my recommendation that we do that, but it wasn't finalized. Do we have unanimous consent that we'll proceed with Bill 110 when we come back at 2 o'clock? Agreed.
The committee recessed at 1153.
AFTERNOON SITTING
The committee resumed at 1442.
CONSENT AND CAPACITY STATUTE LAW AMENDMENT ACT, 1992 / LOI DE 1992 MODIFIANT DES LOIS EN CE QUI CONCERNE LE CONSENTEMENT ET LA CAPACITÉ
Consideration of Bill 110, An Act to amend certain Statutes of Ontario consequent upon the enactment of the Advocacy Act, 1992, 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 l'intervention, de la Loi de 1992 sur le consentement au traitement et de la Loi de 1992 sur la prise de décision au nom d'autrui.
The Chair: I call this meeting back to order. This afternoon we will be doing the clause-by-clause consideration of Bill 110.
Mr Sterling: On a point of order, Mr Chairman: I thought we were to meet at 2 o'clock. What has been the delay? We've been wanting to get on with these hearings and are trying to oppose as much delay as possible. What has been the delay this afternoon?
The Chair: The delay has been somewhat the same as what we've had all the way through these hearings, that when we go to a new bill, everybody's late bringing in the amendments and we have to allow the clerk time to get things together.
Mr Winninger: I'd like to speak to that as well. It's actually in the interests of shortening these proceedings and making them run more smoothly that we sometimes have discussion with opposition members about certain positions that are going to be taken by government or by the opposition and try to resolve some differences ahead of time. I'm surprised, quite frankly, Mr Sterling, that you would oppose that procedure, which has worked so well in the past.
Mr Sterling: I think the Chairman is incorrect, if you permit me, Mr Chairman, in saying that there was a delay in getting the amendments in by the parties. As you know, neither the Liberal Party nor the Conservative Party has any amendments, so there was no delay on our part and we were sitting here shortly after 2 of the clock ready to begin.
I'm responding to the fact that this morning Mr Malkowski complained about the opposition parties delaying. We have specifically denied that and have said it's been the government that can't get its act together. We have just had another demonstration of the fact that they can't get their act together. It's two and three quarters hours since we broke, and if they can't figure out what they're going to do or plan the evening before what they're going to do, then that's a sorry state. I just want to say that the delay has been caused by the government, not by the opposition parties.
The Chair: Thank you, Mr Sterling, but in fairness, I think there have been delays all over. We'll proceed with clause-by-clause.
Do we have unanimous consent on the government reprint, section 2.1?
Mrs Sullivan: No.
The Chair: No, we don't have unanimous consent.
Mrs Sullivan: If I could just speak to that, as you know, this amendment proposal is out of order. We have, in the Consent to Treatment Act amendments, included a provision, which all the parties supported, that would ensure that the Child and Family Services Act, as it exists now, remains in place, is operative and has precedence over Bill 109.
There is also a time line established as part of that amendment that would enable the Ministry of Community and Social Services to come forward with changes that would clear up any additional difficulties of bringing the two acts together. Indeed subsequent to the discussions with respect to these bills, there may be other associated matters which should be included in that consideration, above those which were included in this particular amendment.
So we feel the appropriate thing to do, frankly, is to put the ball in the court of the Ministry of Community and Social Services to ensure that the protections and the rights that are provided in the Consent to Treatment Act are also reflected in the Child and Family Services Act and that that be done within the time line specified in Bill 109.
Mr Winninger: I certainly appreciate the thrust of Ms Sullivan's remarks. However, the subsection we're now dealing with, subsection 2.1(1), is what I would submit to be a housekeeping subsection; it defines "nearest relative" in a manner consistent with the Consent to Treatment Act. It's a purely consequential amendment. I don't know whether Ms Sullivan is going so far as to say that a section like that should be ruled out of order. I don't think she is intending to say that section 2.1 should be ruled out of order, it being pure housekeeping.
Mrs Sullivan: If a request is being made for unanimous consent to consider subsection 2.1(1), the definition of "nearest relative," which as a result of the changes that have been made no longer exists, we would provide unanimous consent for consideration of that subsection of 2.1. We believe the other ones are out of order and therefore shouldn't be considered at this time.
The Chair: Do we have unanimous consent to consider subsection 2.1(1)? Agreed. Discussion? Mr Winninger.
Mr Winninger: As I just adverted to, this particular definition is one that's being updated and made consistent with the terminology in Bill 109, the Consent to Treatment Act. That's why we're seeking to retain the inclusion in Bill 110.
The Chair: Further discussion? Seeing no further discussion, we will move to the vote. All those in favour? Opposed? Carried.
Do we have unanimous consent to move government reprint 11.1? No, we don't have unanimous consent.
Next, do we have unanimous consent to move government reprint 17.1?
Mrs Sullivan: Can I ask for a clarification of this section? Does this in fact mean that any person who issues a licence in a city hall for people to be married must in fact do a capacity assessment before being allowed to issue the licence? As I recall, under the old provisions of the Marriage Act, the capacity test included intoxication through alcohol abuse or clear effects of drugs. What the city hall clerk is being asked to do here is to establish on reasonable grounds that a person lacks capacity to marry.
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Mr Sterling: What does this section have to do with the other sections?
Mrs Sullivan: I don't understand either why it's there.
Mr Sterling: Or was this just stuck in?
Mr Winninger: I understand that this is a consequential amendment flowing from Bill 74 and section 30 of that bill, as amended. If Linda Perlis is here -- sorry?
I'm sorry. That was another section. Section 17.1 is included at the request of the Ministry of Consumer and Commercial Relations. There's certain language included in the Marriage Act, as it exists, that makes reference to the mentally ill or the mentally defective or "under the influence of intoxicating liquor or drugs." We're bringing this section up to date, as it were, and making it more consistent with modern thinking and modern expression.
Mr Sterling: So it has nothing to do with Bills 74, 108 or 109; this is just out of the blue. It's been added to the bill. It's not part of the debate on Bill 110.
Mr Winninger: Perhaps we could hear from Mr Fram on this particular amendment.
Mr Steve Fram: The request is made because it addresses the issue of capacity. Not that assessments are made, but because we were dealing with capacity in most aspects of Bill 108 and Bill 109, a totally out-of-date issue of capacity would be left in their legislation, and they requested it on that basis. The actual capacity to marry is established under federal law, and this just picks up for the issuers of licences the capacity established by federal law.
Mr Sterling: So the capacity that we're talking about here is not defined in provincial law?
Mr Fram: That's correct.
Mr Sterling: Is there any obligation now on people who either license a marriage or solemnize a marriage?
Mr Fram: Yes. Section 7 of the Marriage Act reads, "No person shall issue a licence to or solemnize the marriage of any person whom he or she knows or has reasonable grounds to believe lacks capacity to marry by reason of being mentally ill or mentally defective or under the influence of intoxicating liquor or drugs."
The last part is not so much of a problem, but the first part is, because developmentally handicapped people do marry. Generally speaking, the courts have held that the capacity to marry is not a very high capacity, that it does not require much understanding. The use of the terms "mentally defective" and "mentally ill," neither of which is used elsewhere in Ontario legislation any longer, is a particular problem for people who are developmentally handicapped and go to get married. That's why, in connection with Bill 108, which addresses the issue of capacity, they requested that this amendment be made, so that the legislation in Ontario no longer has derogatory language.
Mr Sterling: I read the old section. We're changing the definition, which I don't really mind all that much, but we're now saying that you can issue a licence to somebody who's under the influence of intoxicating liquor or drugs.
Mr Fram: No, that's only one of the causes of incapacity.
Mr Sterling: But you've deleted that out; you've taken that out.
Mr Fram: There are quite a number of reasons why people can lack capacity. One of the reasons under federal law is that people are of the same gender. Under federal law, that is not permitted. Under Ontario law, it would appear to be, because the only reasons being stated in the Ontario legislation are "mentally ill or mentally defective." It more accurately reflects the federal law governing the matter to stop at "lacks capacity to marry."
Mrs Sullivan: As I look at Bill 110, this is an act to amend certain statutes consequent upon the enactment of the advocacy bill, the consent to treatment bill and the substitute decisions bill. I understand what the ministry wanted here, and I think Mr Fram has done a terrific job of trying to argue for maintaining this here, but I think what happened was that the ministry really wanted to update its language. In fact this is not a consequential amendment with respect to the bills that we're dealing with. It's out of order and I don't think we should proceed with it.
Mr Sterling: I'd have to say that I agree. I would ask you to rule on whether it's in order, because it's not fair to our other colleagues in the Legislature who did not debate or see this bill on second reading. This was not included in Bill 110 at that time. Therefore, I'd ask you whether this section is in order.
The Chair: It's not in order and that's why we're asking for unanimous consent. Do we have unanimous consent?
Mr Sterling: No.
Mr Winninger: Think about it before you shake your heads.
The Chair: No, we don't have unanimous consent. Proceed to the government reprint, subsection 18(1).
Mr Winninger: This involves an amendment and a deletion, and I believe there is agreement that it carry.
The Chair: Agreed? Carried.
Government reprint, subsection 18(5). Agreed? Carried.
Government reprint, subsection 18(8.1).
Mrs Sullivan: I believe this amendment is out of order as well, and I'd like to hear an explanation before we proceed.
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Mr Winninger: Mr Sharpe is here to explain that amendment. As most people here know, Mr Sharpe is an expert on the Mental Health Act.
Mr Gilbert Sharpe: I suppose I am.
Mr Winninger: I'm looking to Mr Sharpe for a very specific explanation of the amendment in subsection (8.1).
Mrs Sullivan: Perhaps we could have a ruling from the clerk or a ruling from the Chair as to whether in fact subsection (8.1) is out of order.
The Chair: The Chair gives rulings, not the clerk.
Mrs Sullivan: Yes, I know, on very good advice from the clerk, usually.
The Chair: Thank you. We'll stand this down for a moment.
Mr Winninger: Just for the record, we don't believe that section's out of order at all. Before any ruling is made, we'd appreciate an opportunity to make submissions.
Mrs Sullivan: Okay.
Mr Sterling: Can I just get this clear, Mr Chairman; dealing with --
The Chair: Subsection 18(8.1).
Mrs Sullivan, the Chair agrees that it is out of order because it wasn't in the original bill.
Mr Winninger: On a point of order, Mr Chair: I am having some difficulty with this process. If Ms Sullivan says she believes it's out of order, surely it's appropriate, in the interests of natural justice and fair hearings, to hear why it is in order before a ruling is made. I have some difficulty with the procedure. This happened this morning and we let it ride.
The Chair: It's not debatable.
Mrs Sullivan: Mr Chair, what I would appreciate is an opportunity to hear from counsel the rationale for the inclusion of this section so that unanimous consent to allow that section to proceed could or could not be given.
The Chair: That sounds fair.
Mr Winninger: Mr Sharpe has some comments he's going to make in regard to this.
Mr Sharpe: I thought, if it's all right, I could start off by making a few preliminary comments. Gail Czukar, who litigates matters before the board, has some experience in that, and perhaps her comments may also be useful. This deals with the provision in the Mental Health Act, which is repeated in the next provision, subsection (9), that recognizes a kind of privilege or protection that exists in many jurisdictions that a patient has authority to say he or she doesn't want parts of his or her clinical record put into evidence in a court hearing or before a tribunal.
That could only be overridden by a judge declaring it to be essential in the interests of justice. This was put in in 1978, when we were amending the Mental Health Act. Most jurisdictions have it in their evidence acts, but since our Evidence Act, for various reasons, was not amended to do this, we did it here.
There have been some recent cases, one in particular, that have interpreted this in a way that might be seen as preventing valuable evidence to be put into review board hearings on mental competency reviews, in Bill 109, for example, without going to court and getting an order to override. The intention in 1978 was that the provisions of the Mental Health Act and the proceedings under that act before the review board would not be overridden by this, but it was other tribunals and courts and so on. So to require, if a patient challenges the doctor's finding that he or she is not capable, and in order to --
The Chair: Excuse me, Mr Sharpe. We're talking to subsection 18(8.1).
Mr Sharpe: Oh, sorry. There are two (8.1)s on the page. I'm getting ahead of myself. I had naturally assumed you would be --
Mrs Sullivan: You were sounding pretty good there.
Mr Sharpe: Perhaps we could keep all that on the record when the issue arises of order on the other one.
Mr Winninger: Pull out the other cassette.
The Chair: Government reprint 18(8.1).
Mr Sharpe: This one is easier actually. There are a number of provisions in the rest of the bill that have been added. For example, in subsection 35(4.1) to come, the advocate is given access to the clinical record in order to be able to provide advocacy services within the facility. There are some other provisions as well, like the board, in another (8.1) that I was speaking about at the bottom.
The way in which the act was originally drafted in 1978, the only provisions that one had to make section 35 subject to were these that are referenced in subsections (3) and (5). So all that subsection 18(8.1) at the top of the page does is say that it is subject to the whole section because we're adding other provisions, like the advocate's access, to this.
Gail, do you want to carry on from that?
Ms Gail Czukar: That's right. That's what this subsection 18(8.1) does. It states that there are additional exceptions, like access by the new board, the Consent and Capacity Review Board, to records for purposes of proceedings before that board and so on. This amendment just makes clear that all of the exceptions in this section apply to the general duty to keep records and information confidential.
Mr Sterling: Does anybody have a copy of the particular section that we're talking about now?
Mr Doug Beecroft: Existing subsection 35(2) of the Mental Health Act reads, "Except as provided in subsections (3) and (5) and section 36, no person shall disclose, transmit or examine a clinical record." The proposed amendment is to strike out the reference to subsections (3) and (5) and insert this section, so that it would read, "Except as provided in this section and section 36."
Mr Sterling: I'm afraid I'm going to have to understand this before I agree, Mr Chairman. It may be quite an important thing.
The Chair: Perhaps Mr Sharpe can further clarify.
Mr Sharpe: Section 35 presents a general prohibition. That's the triggering mechanism. It says that you can't disclose records containing this private psychiatric information, and then there are penalties if you do that, unless you have consent or unless it's required by court order. These are the sorts of things set out in subsection (3) and subsection (5) normally that have been in the act for a long time.
What we're doing now is intending to add other people who can have access without consent within this section, such as the advocate. If advocates are going to provide services to this population, as they're now doing, the past practice has been to appoint them under the Ministry of Health Act. There's a section, section 5, where the minister can appoint inspectors who have powers to go in and look at things, and the Mental Health Act has a similar section.
In 1978, when this provision was first put into the Mental Health Act, in section 35, saying no person shall disclose and so on, and then ultimately when the advocate program first developed in the early 1980s, the question was raised about how the advocates were going to be able to have access to these records. They're dealing with vulnerable people, where it may not be always possible to get a consent as required under subsection 35(3). We appointed the advocates under the Mental Health Act, subsection (5), with inspector authority, and of course every time an advocate was changed you'd have to revoke the previous appointment and make new ones.
Given that we now have rights advisers and advocates and a public guardian and trustee who are being appointed who under certain circumstances would have to have access to this information, and we're trying to add them later on, we want to make sure they can have unfettered access without the administrator of the hospital saying, "But under 35(2) I can't give it to you."
That's why it's there. The concern is, unless we do this, the public guardian and trustee, the advocate and the board won't be able to have access to the records. When we drafted the section originally, it wasn't contemplated that these people would exist.
The Chair: Are the committee members comfortable with the explanation?
Mr Sterling: I think what I'm being told is that if I don't trust this commission and the way this Bill 74 has been set up, then I should object to this amendment being allowed to pass. That's what I'm being told, and after this morning, I don't trust this commission under the rules we have had under Bill 74.
The Chair: Possibly now would be the time to ask whether we have unanimous consent on the government reprint 18(8.1).
Mr Sterling: No.
The Chair: No, we don't have unanimous consent. Possibly we could have a two-minute recess, and I would ask none of the committee members to leave the room, please. This committee stands recessed for two minutes.
The committee recessed at 1512.
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The Chair: I call this meeting back to order. There's been a fair bit of discussion over that brief break.
Mr Winninger: I wonder if we could return for a moment to section 11.1, which deals with the Freedom of Information and Protection of Privacy Act, and whether the opposition members might be prepared to reconsider their position in regard to section 11.1.
Just for clarification, clause 11.1(1)(b) would enable an individual's attorney under a continuing power of attorney, the individual's attorney under a validated power of attorney for personal care, the individual's guardian of the person or the individual's guardian of property, to gain access to information that a person would have under the Freedom of Information and Protection of Privacy Act.
I suggest, given statements made by opposition members earlier in these proceedings, that they would be concerned, as I would be, were substitute decision-makers not able to gain the access they need to a person's files in order to make the important decisions regarding personal care or decisions regarding disposition of property. I realize the opposition members have already denied unanimous consent to consideration of this subsection and particular emphasis was laid on the reference to the Advocacy Act in subsection (2). I'm just wondering whether the opposition members might be prepared to accord unanimous consent to consider clause 11.1(1)(b) again.
The Chair: Do we have unanimous consent? Agreed. Debate on 11.1(1)(b)?
Mr Winninger: Mr Chair, I think I've already set out the rationale as to why it's desirable that this amendment be approved and I believe the opposition members are not opposing that particular amendment.
Mr Sterling: I agree with that amendment.
The Chair: Thank you, Mr Sterling. Seeing no further debate, we'll proceed to the vote. All those in favour of government reprint 11.1(1)(b)? Opposed? Carried.
Government reprint subsection 18(8.1). Mr Winninger.
Mr Winninger: Now that we've had a fairly extensive explanation of the rationale as to why subsection 18(8.1) is included in Bill 110, I wonder if we could have some indication from the opposition as to whether it'll agree to unanimous consent to consideration.
The Chair: The committee is agreed to move government reprint subsection 18(8.1)? Do we have unanimous consent?
Mr Sterling: Mr Chairman, just a minute. What are we doing now?
The Chair: Government reprint subsection 18(8.1).
Mr Sterling: What consent are you seeking?
The Chair: We're asking for unanimous consent.
Mr Sterling: To what?
The Chair: To move it.
Mr Sterling: Is this the one I objected to before?
The Chair: It's one of them.
Mr Winninger: Mr Sterling, I don't think you objected very strenuously on this particular section. You were just in your "no" mode.
Mr Sterling: Unfortunately, I was having another conversation over here to try to determine what happens down the road as a result of this objection. I continue to object.
The Chair: You continue to object?
Mr Sterling: Yes.
The Chair: We don't have unanimous consent.
We proceed to government reprint subsection 18(10.1). Discussion? Agreed?
Mr Sterling: Where are we now?
The Chair: Government reprint subsection 18(10.1). Agreed?
Mr Sterling: It's in order anyway, isn't it, Mr Chairman?
The Chair: Yes, it's all in order. Agreed? Carried.
Government reprint subsection 18(10.2). Discussion? Agreed? Carried.
Government reprint subsection 18(17). Discussion? Carried.
Government reprint subsection 18(33). Mr Winninger.
Mr Winninger: I wonder if I could call for a 15-minute recess at this point.
The Chair: This committee stands recessed for 15 minutes.
The committee recessed at 1535.
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The Chair: I call this meeting back to order. We're on the government reprint 18(33). Agreed? Carried.
Government motion on 18(51).
Mr Winninger moves that subsection 18(51) of the bill, as reprinted to show the amendments proposed by the Attorney General, be amended by striking out "section 16" in the sixth and seventh lines and substituting "section 15."
Motion agreed to.
The Chair: Any discussion on the government reprint section 25?
Mr Winninger: Carried.
The Chair: Just discussion; it's the whole section. Seeing no discussion --
Interjections: Carried.
The Chair: That's a section; it's not necessary.
Further discussion on Bill 110? Seeing no further discussion on Bill 110, that's done.
Mrs Sullivan: Mr Chairman, I move the adjournment of the committee.
The Chair: Mrs Sullivan moves adjournment of the committee. All those in favour? Opposed? Carried. This committee stands adjourned until October 5.
The committee adjourned at 1614.