CONTENTS
Wednesday 28 February 1996
Advocacy, Consent and Substitute Decisions Statute Law Amendment Act, 1995, Bill 19, Mr Harnick /
Loi de 1995 modifiant des lois en ce qui concerne l'intervention, le consentement
et la prise de décisions au nom d'autrui, projet de loi 19, M. Harnick
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président: Martiniuk, Gerry (Cambridge PC)
Vice-Chair / Vice-Président: Johnson, Ron (Brantford PC)
*Boyd, Marion (London Centre / -Centre ND)
Chiarelli, Robert (Ottawa West / -Ouest L)
Conway, Sean G. (Renfrew North / -Nord L)
*Doyle, Ed (Wentworth East / -Est PC)
*Guzzo, Garry J. (Ottawa-Rideau PC)
Hampton, Howard (Rainy River ND)
Hudak, Tim (Niagara South / -Sud PC)
*Johnson, Ron (Brantford PC)
*Klees, Frank (York-Mackenzie PC)
*Leadston, Gary L. (Kitchener-Wilmot PC)
*Martiniuk, Gerry (Cambridge PC)
*Parker, John L. (York East / -Est PC)
Ramsay, David (Timiskaming L)
*Tilson, David (Dufferin-Peel PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Brown, Michael A. (Algoma-Manitoulin L) for Mr Chiarelli
Caplan, Elinor (Oriole L) for Mr Conway
Grandmaître, Bernard (Ottawa East / -Est L) for Mr Ramsay
Johns, Helen (Huron PC) for Mr Hudak
Marchese, Rosario (Fort York ND) for Mr Hampton
Also taking part / Autres participants et participantes:
Ministry of Health
Auksi, Juta, senior consultant, legislative policy unit
Burwash, Anna, senior policy adviser, program design
Perun, Halyna, legal counsel
Clerk / Greffière: Bryce, Donna
Staff / Personnel: Gottheil, Joanne, legislative counsel
The committee met at 1004 in room 151.
ADVOCACY, CONSENT AND SUBSTITUTE DECISIONS STATUTE LAW AMENDMENT ACT, 1995 / LOI DE 1995 MODIFIANT DES LOIS EN CE QUI CONCERNE L'INTERVENTION, LE CONSENTEMENT ET LA PRISE DE DÉCISIONS AU NOM D'AUTRUI
Consideration of Bill 19, An Act to repeal the Advocacy Act, 1992, revise the Consent to Treatment Act, 1992, amend the Substitute Decisions Act, 1992 and amend other Acts in respect of related matters / Projet de loi 19, Loi abrogeant la Loi de 1992 sur l'intervention, révisant la Loi de 1992 sur le consentement au traitement, modifiant la Loi de 1992 sur la prise de décisions au nom d'autrui et modifiant d'autres lois en ce qui concerne des questions connexes.
The Chair (Mr Gerry Martiniuk): Good morning, members of the committee. This is a continuation of the hearings of Bill 19 by the standing committee on administration of justice. We concluded yesterday at 5 dealing with the government motion to insert a new section into schedule A, section 15.1. When we left, Mrs Boyd was addressing this motion and will continue this morning.
Mrs Marion Boyd (London Centre): As we were saying yesterday when the committee ended, the motion that the government has put forward essentially puts back into the hands of the health care professionals whether or not, in what manner and to what extent people get information when they are found to be incapable.
We really believe that that indeed contravenes the rights that individuals have, given the seriousness of this finding of incapacity. We believe very strongly that if indeed this is the route that the government is going to take, what it will mean is that individual people in Ontario will find themselves in a situation which is frankly untenable in terms of the seriousness of a finding of incapacity.
The government has politely requested the health care professional colleges to provide -- and the wording is quite interesting -- "in the circumstances and manner specified in guidelines established by the governing body of the health practitioner's profession, provide to persons found by the health practitioners to be incapable with respect to treatment such information about the consequences of the findings as is specified in the guidelines."
That can't be anything else but a blank cheque to the health care professionals. The government is saying to them they can do whatever they like about this, and we are abandoning the vulnerable people who depend on governments to ensure that those who have power over vulnerable people will inform them about the circumstances and the consequences, and indeed their rights to appeal the findings of that health professional.
Quite frankly, as we said yesterday and as Mrs Caplan said on behalf of the Liberals, this was entirely counter to the vast majority of the presentations that came in front of this committee, and I would point out even against the presentations of many of the medical professionals who believe very strongly that this was not the job that they should have, who talked quite persuasively about the need to have independent people.
It was only the powerful controlling bodies of the health care professions that suggested this should be left in the hands of the professions. There's nothing in this motion which indicates a time frame, so presumably this act could be put into place while the colleges are still considering whether or not and in what manner to respond to the government's request.
In the meantime, rights advice information about the right to appeal would not be available to people and, quite frankly, I think if the government is being sensible, they will understand that that will no doubt under those circumstances be challenged and certainly is not an appropriate way to deal with this very sensitive issue.
We believe very strongly that the government listened only to a very small proportion of the people who came in front of this committee. We believe very strongly that they are abdicating their role as the protector of the vulnerable by putting this forward in this manner.
There are no sanctions built into this on any government motion if the health care professionals should not fulfil the request of the government. The parliamentary assistant says, "Under the act the minister could require this," and we're saying, "Yes, and as we saw with the issue around sexual abuse with physicians, that may well be what you are required to do." In the meantime, hundreds, thousands of vulnerable people will not have the information they require and their lives will be affected dramatically by the fact that there is nothing in place. We urged the government in a previous motion not to put this act into effect until something was in place, and of course they refused to listen to us.
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What we're saying is if you really are serious, and we've heard lots of fine words about how serious you are about advocating on behalf of the vulnerable, then how can you leave this kind of vacuum when people's lives are literally at stake in this situation? Your trust and faith in the medical professions is touching, but we wouldn't even have any of these actions, we wouldn't have had 15 years of discussion in this province around the need to have laws surrounding consent, if those professions had been eager participants out there in front ensuring that informed consent was really occurring.
The whole reason we are sitting here with these very important bills in front of us and the whole reason that the previous three governments worked on this issue was that that wasn't happening. The horror stories, unfortunately many of them told at inquests, tell us that the need for this kind of information is very strong.
Vulnerable people came in front of us in this committee and said that without some form of rights advice, without some form of advocacy, they feel more vulnerable than ever before as a result of this act, particularly because it literally hands back power over their lives, in many cases to those who have been abusive of them, without knowing that they've been declared incapable. All sorts of treatments can happen to them without their ever knowing why someone is able to do this to them. We have no assurance, in fact I have very little faith, that we will see anything that is going to be adequate for vulnerable people come out of the colleges in a short period of time, in the period of time that we contemplate before you put this act into place.
Mr Rosario Marchese (Fort York): That's a fact.
Mrs Boyd: In the meantime, notices have been given to the rights advisers who were there under the Advocacy Act. They all came in front of you telling you that their jobs were up on March 29. They understood that, and there is this huge vacuum. For a government knowingly, and I would suggest knowingly, to put people at risk in this way is simply unconscionable.
I would urge the government not to go through with this particular motion, to look at ways, at least if you are going to put the responsibility in the hands of health practitioners, to put them on a timetable to require them to do this and to provide for yourselves not what is in the letter that your counsel sent the colleges that they should just submit these guidelines to the ministry, but that the minister himself must be prepared to look at them and make sure they are adequate for the protection of vulnerable people.
Mr Marchese: That's right.
Mrs Boyd: The responsibility is a responsibility of government to protect those who are unable to protect themselves. Quite frankly, by putting this in place in the way that you are, you're simply abdicating that responsibility, and people will know that. That's not going to be a surprise or a secret. People will understand that that is exactly what has happened and that you did not listen to the vast majority of people who came in front of this committee, that you decided to listen only to those who have been the powerful ones within the medical profession and whose attitudes have lead us to the point where legislation is required to protect vulnerable people.
It is not clear to me from this motion -- it may well be that it is implied -- that not following these guidelines would call a person in a health profession before their college on a disciplinary matter. I would like some clarification about the force of guidelines under the Regulated Health Professions Act, whether in fact breaking a guideline formed in this very informal way would constitute professional misconduct, and I wonder if counsel could give me that information.
The Chair: Would you please identify yourself.
Ms Halyna Perun: Halyna Perun from the legal branch at Health. I'd like to look at the Regulated Health Professions Act before I answer your question, and I undertake to do that in the next little while.
Mrs Boyd: I certainly hope that before we are called upon to vote on this motion, we will know whether or not breaking one of those guidelines or ignoring one of those guidelines would in fact be professional misconduct, because if it would not, I think this is a very serious move that you're making. I think you may be under the illusion that it would necessarily be that way. I think it's very important for you all to recognize that even legal counsel for the ministry is not sure that would be the case. That's a very serious matter, so I hope we have that answer before we vote on this particular motion.
Mr David Tilson (Dufferin-Peel): There's no question, and our government has made it perfectly clear, that we're most reluctant to interfere in the clinical practice of health providers. We're most reluctant to do that. It would appear from what you've been saying, and anticipating your amendments, looking at your draft amendments at least, that obviously you want to go much further than that. You want to -- I know you'll say the word "interfere" is an unfair word -- become involved in the clinical practice, or at least become quite specific as to what medical practitioners should do.
Mrs Boyd is putting up her hand, and my question is to her as a result of some of her past comments. How far do you think the state should go in interfering or intervening as to the clinical practice of medical practitioners or health providers?
Mrs Boyd: I, first of all, do not in any way think that any of our motions would interfere with the clinical practice of any physician. What our motions suggest is that we have not as a society required health practitioners to be responsible to the consumer in a way that is appropriate. We believe very strongly that this whole action that has happened in the last 15 years -- many, many discussions have said very clearly that, yes, in the best of all possible worlds we might like to think that we can trust health professionals to treat people with dignity and respect, to respect their rights, to ensure that they know what their rights are and to ensure they understand that they have a right to consent and that if they're considered incapable then there is a process they can follow if they disagree with that. I do not in any way think that involves clinical practice.
Mr Tilson: The reason I asked that question is --
Mrs Boyd: May I finish, please? I really need to finish because I think it's very important for you to know.
We heard many physicians who came in front of us saying: "Of course I consider that my job. I can't be a healer if I'm not treating my patients that way."
None of these acts would be required if there were not problems. Those problems may be in a minority of cases, but they are problems. We also heard consumers come in front of this committee and say that that is not the practice of health care professionals, that in fact health care professionals are more than willing to say, "We know best and we will do what we think is best, whatever you think of it."
That's a problem, because we are based in a situation where our health care is a very important thing to us. It's probably more important to vulnerable people who might be considered incapable, because it is literally very much more immediate to a disabled person or a frail elderly person. They're aware of health as an important aspect of their lives in the way that those of us who are healthy and able-bodied are not necessarily aware of in a daily way.
So I would say very clearly, and many physicians said this to us, good medical practice would indicate that this communication with patients would be part of the healing process. What you need a law for is that this has not been the case in many cases, and we heard many instances of that.
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Mr Tilson: I know you're going to pull out the summary -- Mr Marchese loves to do that -- and quote, and that's fair. And Mrs Caplan delights in talking about no consultation or lack of consultation. I guess I'm telling you that in my own personal experience, which certainly hasn't been in the health area, but as a person who's been sitting in this place for as long as you have at least, medical people and health care providers, long-term-care providers and so on have said to us, "You've got to give us some discretion."
Notwithstanding Mr Marchese waving this in front of me, I'm telling you what has been said in my own riding, in sessions that I've had in my own riding, and I dare say which you've had in your own riding. You may contradict as to maybe things go on differently in London than in Dufferin and Caledon, but I'm telling you that in my riding the medical people have felt that the state is starting to interfere too much in their clinical practice, and we need these people. If we want to help the vulnerable people, we need these health care providers. Not only do we need them, we have to trust them. Not only do we have to trust them, we really have to trust them, because if we don't trust them, they're not going to want to do this stuff. We need them, we desperately need them, because if we don't have them, we're in big trouble.
That's why, Mrs Boyd, I guess I'm looking to you to be cautious in your remarks in scaring off health care providers. Why would you want to do this sort of thing -- and I say "this sort of thing," the work that they're doing -- if the state's going to come along and start telling them how to practise medicine? I think they would find that fairly resentful.
This whole issue with respect to this amendment that's before us now, of course, is the issue of providing information, not advice but providing information, making sure they're aware of things, of their rights.
Mr Marchese: It doesn't say that.
Mrs Boyd: It doesn't say anything about rights.
Mr Tilson: I'm sorry, it does say that.
Mr Marchese: No, it doesn't.
Mrs Boyd: It doesn't say anything about rights. Whatever information they decide.
The Chair: We'll each have our opportunity.
Mr Tilson: Maybe that's fair for a debate as to the interpretation as to what the section says. I suspect that's probably what we're really debating here, that we think it says one thing and you think it says something else, and that's maybe the next issue that we want to get into. But my concern with your remarks and what you're suggesting that the government do is that you're asking us to interfere more than we want to and more than we should in the practice of medicine.
Mrs Elinor Caplan (Oriole): I would like to be very clear on behalf of our party that we do not believe the state should interfere in clinical practice. In fact, one of the concerns that I have is that Bill 26 has done more to frighten and scare and give the government the potential to interfere in clinical practice than anything we see before us in Bill 19.
Mr Tilson: If you want to debate Bill 26, we'll do that, but this isn't the time to debate Bill 26.
The Chair: Mrs Caplan has the floor, ladies and gentlemen, if we could.
Mrs Caplan: I don't want to provoke Mr Tilson but I must say it is unfortunate that he would raise that spectre in the context of the policies of his government. I'm not going to get into that. I just want to put on the record where we stand on this so that we're clear.
We do not believe the state should interfere with clinical practice. We believe that we can respond appropriately to the request of all of those who came before the committee, the 78% who said that it is reasonable to have a statutory obligation. We believe that you should leave it to the colleges to develop those guidelines and we have a later amendment that is actually quite comfortable with the government's and we hope that they'll support it when we get to it. We intend to support the government's amendment because we see it as better than nothing, although we think that it is obfuscation and not helpful to clarity. We believe legislation should be much clearer than this clause is, and we are going to support this clause.
The other thing I want to say is that we are not going to be supporting the NDP amendments that will put it into the statute and not permit the colleges to do the guidelines and the regulations. The reason we're not going to support it is because of what we heard from so many who came before the committee who talked about the poisoned atmosphere that results from having it written in statute.
It's not that it interferes with clinical practice; it's that unfortunately we have an environment out there now where too many backs have gotten up. I was quite impressed and distressed to hear what Peter Singer had to say about this. The reality is, for those who are watching this debate and listening and for the record, that what is being requested as far as an obligation to inform is standard practice in the Mental Health Act and it has been for 20 years. And 80%, by the way, of those who would fall under Bill 19 will fall under the Mental Health Act.
Under the Mental Health Act there is an obligation on the part of the psychiatrist who deems someone incapable to let them know and to let them know that they have the right to appeal that finding to the Consent and Capacity Board. Before that it was called the psychiatric review board. That is a right and that is a procedure that has been in place in this province for 20 years. It is not new. It doesn't interfere with clinical practice. What it does is foster an important communication.
We heard from psychiatrists -- and the only reason I'm repeating this, Mr Tilson, is you didn't it hear it personally. I'm not criticizing that, but we heard from the psychiatrists who say it's not a problem. It doesn't interfere. It fosters better practice of medicine and it doesn't interfere with clinical judgements, and it's been the practice in this province for 20 years. We also know that the legislation requires the office of the public guardian and trustee to inform people.
So you have in this legislation and in this province a statutory obligation to inform in the Mental Health Act. You have a statutory obligation to inform if it's the public guardian and trustee. All that is being requested by us is a statement in here that it's a statutory obligation to inform for everybody else, those 20% or 25% who would not be covered by the Mental Health Act and the public guardian and trustee, and it may be as low as 10%.
What we're asking for isn't new and it's not an interference in clinical practice. It's not anything that anyone has objected to under the Mental Health Act once it was in practice. Were there objections when it was brought in 20 years ago? Yes, there were. How has it worked in practice? It's worked very well. We heard that from a doctor from Hamilton, from the Hamilton Psychiatric Hospital. Check the Hansards: not a problem.
The problem is that the previous legislation did create an atmosphere where people misunderstood and got their backs up. So we can correct this in this legislation, and I think we should. That's why we're going to support the government's amendment, and we hope that they will support ours at the appropriate place, because it does empower the colleges, but it also clearly lets everyone know that the same obligation that exists in the Mental Health Act and that exists for the public guardian and trustee should exist for everyone under this legislation. That's the request that we're making.
I want to be on the record that we will not be supporting the approach that puts the whole thing and the guideline process in the statute. We have confidence that the colleges can and will -- and in fact I spoke to Michael Dixon of the College of Physicians and Surgeons, and they are prepared to do that. In fact, as he said to me, they've had an advancement in their thinking since they appeared before the committee and were influenced by the representations at the committee by many of their own members and feel that they can do this and do it in a way which will deal with that issue.
But there is one which would not be resolved by the colleges, Mr Tilson, and that is those people whom you will be able to regulate as assessors -- as evaluators. The language is important. You can designate social workers, and you intend to do that, but this amendment that you have put forward will not cover them because they are not part of a regulatory college. Our amendment will fix that, which is why we hope you will support that. I'm not going to speak any further on it. I would like to suggest that we just vote.
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Mr Tilson: You're saying it would cover all social workers.
Mrs Caplan: No, no. What I'm saying is it would cover all evaluators. Our amendment will cover all evaluators as far as their obligations under the legislation, whether the evaluator is a social worker, as you decide by regulation, or it could be another health care practitioner that you decide by regulation can be an evaluator who is not part of a college and a self-regulating profession. I frankly can think of a few who would qualify.
Mrs Boyd: Mr Tilson said, "Maybe London's different," and certainly the presentations we had from physicians from London were different from what we heard from the college. I'm delighted, if Mrs Caplan is right, that the college has advanced its thinking since it appeared in front of us. That is very good news and we should all be very pleased about that because, quite frankly, I was very discouraged in terms of the presentation that was there.
Certainly, the physicians who appeared before us, the majority of whom, as I recall, were psychiatrists, were absolutely adamant that they believed this was part of good practice, always had been part of good practice and I simply point out to the members the reason we got that message from large numbers of psychiatrists was that they've had 20 years of working under a regime that requires them to give rights and requires them to tell people about the ability to appeal. They have found that this works very well, that in fact it fosters good communication between them and their patients. They were very clear about that; that has become part of practice.
But if you look back at when that became part of the rules, in, I believe, the early 1980s, you will find that in fact there was a lot of resistance from that group of physicians at that time. They also made claims, as I recall, about this interfering with them between their patients and their experience has shown them that was not true, that in fact as they moved forward, as they found themselves able to make this part of their routine, it fostered communication. We heard that from Doctor Harris, we heard it from the group who came forward to us from the Victoria Hospital. So, Mr Tilson, you may be right. Physicians in London may be in a different position than they are some places.
We also heard from people in London, though, of inappropriateness in terms of the information about incapacity. We heard about inappropriateness in terms of the attitude towards those who are frail or disabled when they are incapacitated and suggestions being made about treatment or lack of treatment, withdrawal of treatment, that were quite disturbing. Same city, same profession.
I guess what I would say to you is, if you are going to pass this motion, then I would urge you to also pass the motion which is supplemental to this requiring in law that health professionals who find someone incapacitated in fact must inform them. That way you will have the impetus here to carry on this good intention that's been expressed. I find that very often when we're in this kind of situation with impending legislation, a great many promises come out of the professions that might be affected and then, as time goes on, we don't see that same level of commitment when they find that they are not required by the legislation to do it. I don't think physicians are any different from other professionals in that, in order to avoid being required to do something by legislation, there is often a willingness to change which is not quite as enthusiastic once they get their own way and are not required by the legislation to do something.
So I would say, in terms of this issue of interference in clinical practice, if we are really to take seriously the comments of physicians who came before us and said, "It interferes with my clinical practice to fully inform my patient of what the circumstances are and what my findings are, it interferes with my clinical practice to provide my patient with the information that they don't have to accept my decision on incapacity," then I think we should all be very apprehensive.
If, clinically, physicians are clear in themselves and have confidence in their own views, why would they object to their patients having that information? Why would they object to having to give full information to their clients? We didn't hear that from all of the health professionals. We heard from the dentists, for example, the dentists very clearly saying that of course information should come forward.
So it's very important, I think, for us to keep in mind that this spectre of the interference with clinical practice is a red herring, it is completely a red herring, and it is not something that we should take seriously at all in our deliberations.
Mrs Helen Johns (Huron): Mr Chair, I believe we have the answer from legal counsel.
Ms Perun: Sorry about that. We still wanted to bring over the Medicine Act and the regulations to actually have before us, but one of the heads of professional misconduct is the basket clause, which is conduct unbecoming a physician or other health practitioner. Each health professions act has that kind of provision in the regulations, and a breach of a guideline would be a conduct unbecoming a practitioner and that issue would be subject to disciplinary matters as well.
Mrs Boyd: May we ask what kind of sanction applies in that kind of disciplinary matter?
Ms Perun: It's a matter before the disciplinary college, so the sanctions that the college has vis-à-vis any other breaches would apply.
The Chair: Does that answer satisfy your inquiry, Mrs Boyd?
Mrs Boyd: Well, it sounds like there's the ability of the college, if a vulnerable person, first of all, knows anything about a process of making a complaint and makes that complaint and then is able to withstand the long waits that happen in terms of disciplinary matters of the college, that eventually this matter might be considered by the disciplinary committee, and I would say, if we're just talking about conduct unbecoming to a health care professional, the disciplinary action would be similar to being slapped on the wrist with a wet noodle.
Mr Marchese: I guess the reason why we're taking a bit of time to discuss the government's motion is because we have a good sense that they will defeat ours, so we're trying to reform theirs as best we can. Our says:
"If a health practitioner finds that a person is incapable with respect to a treatment of a mental disorder in any psychiatric facility, a person designated by said psychiatric patient advocate office shall,
"(a) explain to the person the significance of the finding of incapacity and the right to apply to the board for a review of the finding, unless the health practitioner certifies in writing that,
"(i) the explanation would be harmful to the person, or
"(ii) the person's condition is such that the explanation would be of no value; and
"(b) if requested, assist the person in obtaining representation for the purpose of an application to the board."
Now, we support our motion, this one and others in different places -- there are several motions that we have -- but this is one of them.
In another section:
"If a health practitioner finds that a person is incapable with respect to a treatment, a person designated by a non-profit corporation established for the purpose of providing rights advice under this act shall,
"(a) explain to the person the significance of the finding of incapacity and the right to apply to the board for a review of the finding, unless the health practitioner certifies in writing that,
"(i) the explanation would be harmful to the person, or
"(ii) the person's condition is such that the explanation would be of no value; and
"(b) if requested, assist the person in obtaining representation for the purpose of an application to the board."
We believe our motions addressed some of the concerns that doctors stated, and that is, in some cases they felt it could be harmful. Well, if that's the case, then our condition says that you can proceed but certify in writing with an explanation that doing so, giving that kind of advice, would be harmful to the patient. That takes care of the concerns the medical profession had with respect to it.
These are our motions. I know that they will be defeated; we have a good sense of that. So we're trying to come to terms with your motion to see if we can get as much as we possibly can to be able to address the concerns that I wave around, Mr Tilson -- because you say I wave around this document.
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Mr Tilson: No, you do a great job, Mr Marchese.
Mr Marchese: Thank you, Mr Tilson. This is the final summary done by our research. It's not something I wave around because it's mine. And I don't wave it around, I just show it to you for clarity purposes. I read yesterday a whole list of comments that organizations have made with respect to this. They're not my comments; they're comments of organizations that have spoken to this matter. It's important for you to hear it again in the event that some of you missed it during the deputations, and it's useful for the public watching to know that we are not saying these things in a vacuum. We're saying it because many have said it, and if it concerns them, it concerns us.
There are several things that I want to add because I think that what we're trying to do is to balance rights, and the right to consent and a process for disagreement, an obligation to inform is a critical part of what we're trying to do.
You say that you have an interpretation of your motion and that we have another. I understand that, but this is where our disagreement is. Our interpretation of your interpretation is based on the comments that you make with respect to it. You say: "We are reluctant to interfere in clinical practice. We need doctors" -- we agree with that -- "and we have to trust doctors" -- we agree with that too. But in saying that you're reluctant to interfere in clinical practice, what that means to me is that the language that you have built in there is the least intrusive, is a minimalist kind of approach to the profession saying, "Please provide something" --
Mr Tilson: It doesn't go as far as yours.
Mr Marchese: It doesn't go as far as ours, absolutely, but what yours does is not quite clear. Now, you're saying it gives rights advice; we're saying it doesn't. It doesn't say that in the motion. You want it to say that.
Mr Tilson: That's the crux of the thing.
Mr Marchese: I think that's what you want to say to us here, but the motion doesn't say that. So what we're saying to you is, if that's really what you want to say, build it into the motion. Stand it down, work the language so that it says what you said. But it doesn't say anywhere in the language that we read that there is a duty to inform or an obligation to inform. It just says "provide...with respect to treatment such information about the consequences of the findings" --
Mrs Johns: As is specified.
Mr Marchese: -- "as is specified in the guidelines," whatever those guidelines say. If you wanted to say what we're arguing on this side of the room, then say it differently. And if you also say it says rights advice, well, say that, because there are no clear directions in there as to what those guidelines should be. That's our objection to your motion. You do not instruct the professions, the colleges, what they should do. So if you want it to say that, instruct them properly and clearly. Then we have no problems objecting to the motion, but as it is, it doesn't do the job. It pretends to do it, but it doesn't do it.
So in good faith, if they mean what they say, then they should write it out in such a manner; otherwise, they're not saying it and they're not doing it.
Interjection.
The Chair: I was going to call the question, Mr Tilson. We are dealing with the government motion to add section 15.1, which is contained on page 101. Shall the amendment pass?
Mrs Boyd: Recorded vote, please.
Ayes
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
Nays
Boyd, Marchese.
The Chair: The amendment is carried.
We will now proceed to page 102 of the proposed motions, and this is a Liberal proposed amendment. I have been advised by the legislative counsel that this could be construed as complementary and therefore is a proper motion for debate.
Mrs Caplan: We're hoping that the government will support this. There were two things that we heard; one was that because the legislation allows an administrator to call in someone to advise the patient of their rights, we believe it's important that the legislation be very clear that this person not be involved in the treatment of the clinical care of the person. So I'm going to move the following motion.
I move that the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following section:
"15.1(1) If a person is found to be incapable with respect to treatment in a hospital or other health facility and that hospital or health facility decides to advise the person with respect to that finding, the hospital or facility shall ensure that the person giving the advice,
"(a) is not involved in the treatment or clinical care of the person; and
"(b) has received training to give such advice given or approved by the Psychiatric Patient Advocate Office."
One of the concerns that we have as well as making sure that there is no conflict when someone is selected by the hospital administrator to come in to give advice to a patient, is that this person has received training. We've heard a number of presenters come forward to express the need for training to make sure that people who are doing this work know what they're doing. We have also heard the concerns of others as to the impact that this can have and we want to make sure that it's done properly.
There is one body we hope the government will give the mandate to, in fact, for not only all the schedule 1 agencies but I would hope for any and all of the community mental health programs where rights advice might be appropriate, and that would be the Psychiatric Patient Advocate Office.
The Psychiatric Patient Advocate Office at the present time has a mandate to do rights advice and advocacy in the 10 provincial psychiatric hospitals. This is the group that I referred to earlier on when I said there are things that are existing and in place in the province and have been for some 20 years that are quite accepted practice. Now, at the time the Psychiatric Patient Advocate Office was developed by a former Conservative government, it was very controversial and it was brought into place because at that time there was a demonstrated need in the psychiatric hospitals. There were many abuses of the people who were committed there. We all know of those horror stories; I'm not going to get into it. But when the PPAO, as it is known, was established, it was very controversial. It has proven itself. It is respected and supported by most of the staff in those hospitals. It's respected and supported by the clients they serve. It's respected and supported by community organizations. I think that's the most appropriate organization to do two things: (1) I think its mandate should be expanded to all psychiatric programs, and the reason I use the word "programs" is there are some programs that are not provided in schedule 1 hospitals, so I would use the word "program" rather than "facility," but you could call it "facility" as long as you made sure that every facility that had a psych program in it would ensure that they use the services of the PPAO. The ministry can do that; it doesn't have to be in legislation, and I hope they will choose to do that because I think that's the right decision, because you've got something that is proven and that works, that doesn't interfere with clinical judgements, that knows how rights advice should be given.
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But the second thing that I think could be mandated and should be mandated in the legislation is that anybody who is selected by an administrator should have received training from the PPAO. They train their own staff now. They can hold training courses, conferences, bring people in. It's the lowest-cost way of doing it. In fact, I think that everyone would feel very comfortable knowing that people had been identified in their communities who had been properly trained by the PPAO so that this would run smoothly.
So this is a complementary amendment. It is designed to assist in the implementation of the government's intention to allow hospital administrators to identify someone to give this advice and I think that it would be a good statutory move to identify the place where that training should take place.
The last point I want to make is that there is no requirement for any training at all, and if you don't support this motion, there's no assurance that there will be any training of people who are called upon to give rights advice out in the community, because we haven't had any signal from the government that they intend to expand the mandate of the PPAO. Since that is their discretion to decide whether or not they want to do that -- if they were to say to us, "We intend to give the PPAO the mandate to provide their services in all of the settings where it would be appropriate under the Mental Health Act," I would have some confidence that that was going to happen. But we're not certain that that's going to happen. As a bare minimum, I think that we've got to ensure that anyone who is out there receives training.
As you know, the one thing that everyone has said to us is you do need coordination of these kinds of things, you need training, you need education, and hopefully, this amendment is just one small step towards ensuring that at least you have a standard set for training, you do have some coordination and a little bit of accountability built in. It's also very important that the individual giving the advice is not someone who is in direct clinical care. We heard that from presenters when they came forward and said, "We think that we may have the patient's best interests at heart." There is frequently a conflict, and so it is very important that the person coming in to communicate and talk to the patient, when that's been deemed advisable, should not be in a position of direct clinical care. Again, that should satisfy Mr Tilson's concerns, because this is not interfering in any way with clinical practice, it does not interfere in any way with clinical judgements and it brings in someone who is freed from those conflicts to advise the patient when the decision is made by the hospital administrator to bring someone in. I think that's a full explanation. I hope there won't be a need for a lot of debate and I hope the government will support this very reasonable amendment.
Mr Michael A. Brown (Algoma-Manitoulin): Agreed.
Mrs Boyd: I will just say that I could echo, on clauses 15.1(1)(a) and (b), all the comments that Mrs Caplan has made. We too believe that there needs to be some protection on conflict of interest for both the health professional and for the individual who has been deemed to be incapable and that having someone who is not directly involved is a way to resolve that.
What Mrs Caplan said about the Psychiatric Patient Advocate Office is certainly something that we would echo. We think it has been a very important institution and has functioned very well in spite of the hostility that greeted its inception. In fact, we think it has given us the example of why rights advice in fact is important and how that works for people. Part of what we're doing in this whole process is to try and make sure that that is balanced out, and when we come to a discussion of section 50, we know that that really is one of the efforts that we're making here, that people have rights but those rights mustn't interfere with treatment if they have made a decision that that should be the case. The Psychiatric Patient Advocate Office has been very effective in that.
We cannot, however, vote for this motion and the reason we cannot, to our vast surprise, is that if you read this motion, "If a person is found to be incapable with respect to treatment in a hospital or other health facility," and it really should read "and `if' that hospital or health facility decides to advise the person with respect to that finding, the hospital or facility shall ensure that the person giving the advice," and then the two clauses.
We don't think there should be any "if." We don't think it should be up to the hospital or health facility to make a decision as to whether or not a person is informed that they have been found incapable. We believe very strongly that that is a basic right for someone to know that in fact they have been found incapable and that there are dire consequences for their ability to make their own decisions under those circumstances. If people don't know that, then in fact it is not appropriate. If, as I hope, Mrs Caplan is telling me that I'm reading it wrongly -- I think grammatically I'm reading it wrongly because that's all in a conditional clause which ends with a comma after "finding," and if that is not what was intended by this motion, then we ought to know that.
The Chair: Could you clarify that, Mrs Caplan?
Mrs Caplan: Yes, I'd be happy to clarify that. As you know, Mrs Boyd, this legislation removes the obligation for rights advice for everyone. There is a clause, and I'm looking for it, if you can help me out, Halyna, to reference it, the one that says a hospital administrator may call in or appoint someone to give rights advice.
Ms Perun: It's under the Mental Health Act.
Mrs Caplan: It's the amendment under the Mental Health Act.
Ms Perun: There are obligations to call rights advisers under the Mental Health Act only.
Mrs Caplan: Right, and so it's under the Mental Health Act and the hospital administrator, under this legislation, because rights advice has been removed from the schedule 1 community hospitals -- as I understand, it was the commission that was providing that in those facilities. The PPAO has only provided that in the psychiatric hospitals, and at the present time, under the schedule 1 hospitals, there's no one there providing that when the patient is brought into a hospital. The reality is that not everyone is committed in a psych general hospital schedule 1, and so the wording of "when" is to relate to the fact that it would be a committal under the Mental Health Act and that it would not apply universally to everyone because the hospital administrator would not be obligated, except under the Mental Health Act, to do that. That's why we chose those words, because that was the intent of this motion.
We recognize that this legislation removes rights advice for everyone, but we don't want two classes of mental health patients, as has existed in the province. We don't think that should continue any longer and we think that those who have rights, if they're in a provincial psych hospital, particularly given the rumours of divestment and particularly given the concerns about the shift of service to community hospitals and ultimately into the community -- we think that it's important that all of those who are receiving treatment under the Mental Health Act have the same rights. So that's the intent of this motion.
If the government would like to suggest some wording changes, we would certainly be happy to have that so that it is clear, because that is the intent of the motion, just to make sure that all mental health patients, those under the Mental Health Act, are treated the same.
Mrs Johns: I'd just like to draw your attention -- we have done something very similar under the Mental Health Act because we believe that it should be amending the Mental Health Act that you're talking about. We have done numbers 65 and 68. If you have any questions about those, I'll let Halyna speak to that.
We find that this being in section 15 with respect to treatment is a problem place, where it's situated, because you really are talking about the psych facility as opposed to in the normal course of treatment, I believe.
Mrs Caplan: I have a problem with your term "psych facility." That's why we put it here and we used the word "when," so that it is not obligatory for everyone. The problem that we have is that there are psych programs that are not in designated psych facilities. We want to cover those programs, which was why we put it here. We didn't just put it under the Mental Health Act, because under the Mental Health Act you're then restricted to a psych facility. There are some community hospitals delivering psych programs that are not under schedule 1 and we wanted to cover those as well, and we think this would do that, because it is permissive. Mrs Boyd is quite right and I understand her concern and I know that you do have amendments later that cover just the Mental Health Act, but we think this would cover all psych patients in programs that were outside of that which is designated a psych facility. That was the intent, for clarification.
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Ms Perun: The way the Mental Health Act works, first of all, it provides requirements right in the statute for notification of rights adviser for certain things such as certificates of involuntary commission and the like. What the government motion on page 65 does is redefine what a rights adviser is and set out that it would not include a person involved in the direct clinical care of the patient to whom the rights advice is to be given, but the Mental Health Act applies. At the back, there are four schedules to which the Mental Health Act applies, so the psychiatric facilities are those listed in schedules 1, 2, 3 and 4. So they do cover community hospitals where psychiatric services are provided.
Mrs Caplan: No, Halyna, check. There are some community hospitals that provide psych services that are not schedule 1 and listed and therefore covered. That's the problem.
Ms Perun: The consequential amendments that were done to the Mental Health Act give the government the ability to make a regulation-making power to address the provision of rights advice for treatment of those who have been found incapable of psychiatric treatment, to which the Mental Health Act applies. That is what the government amendments to the Mental Health Act do.
Mrs Caplan: We believe that a companion amendment in the Health Care Consent Act is important because it would allow for discretion where a hospital administrator feels that it is appropriate to call in someone, and by designating someone from the PPAO -- there may be a situation where someone in a general hospital not covered directly under the Mental Health Act would need that -- we want the discretion to be there to allow that to happen. It's protection for patients. It doesn't hurt anything, it doesn't cost you anything. We think it's an important amendment. I take the point and I would point out to you that, as Mrs Boyd said, this is discretionary and it is permissive. It's not mandatory.
Mrs Johns: The way that we read this before we came to the meeting today was, "If a person is found to be incapable with respect to treatment in a hospital or other health facility and that hospital or health facility decides to advise the person" -- so we know it can't be under the Mental Health Act because of the "decides to advise a person"; we know that's not the Mental Health Act; we're dealing with other places -- "with respect to that finding, the hospital or facility shall ensure that the person giving the advice is not involved in the treatment or the clinical care of the person." So from our standpoint, the person who is giving the rights advice under 15.1 will be the health practitioner, under the motion that just passed, under 15.1, because of the guidelines that will be prepared by the college. We have asked them to consider information including the right of review.
Mrs Caplan: This is something different. This says that if you have a situation arise where a hospital administrator decides that rights advice is appropriate, over and above whatever the colleges come up with in the way of obligation, this wouldn't hamper that. You would still have your doctor or your nurse or whoever is doing that; they would do whatever their college advises them by guideline to do. But this says that where the hospital administrator says that there is a need for rights advice separate from that, then they would bring in someone who's been trained by the PPAO. It's a protection of some rights advice in those cases where clearly there's been an appeal to the hospital administrator and the hospital administrator wants to do something. It allows them the discretion to act.
Mrs Johns: Are you suggesting that the doctor, under his guidelines, will give information and rights review and then the person can appeal to the hospital administrator?
Mrs Caplan: That happens frequently and it could happen in a hospital where someone is dissatisfied with what's happening. Most hospitals now have patient complaint offices and that sort of thing. That is what's contemplated, so that there is an opportunity for someone to do something rather than saying, "I'm sorry, there's nothing I can do." You have situations now where, if someone is dissatisfied with what's happening in the hospital, they end up going to the hospital administrator.
Mrs Johns: They have the option to review the decision, if they're unhappy with it, in different ways under the act. I don't understand why the administrator is the person that we're talking about here. I mean, this brings a new person into this rights advising that we have never contemplated or heard of in any of the deputant statements.
Mrs Caplan: Maybe I can explain it a little bit better; maybe I haven't done a very good job. This legislation, Bill 19, wipes out all mandatory rights advice by independent rights advisers. That's gone. Truthfully, in its place there's not much.
Mrs Johns: But the health practitioner --
Mrs Caplan: There's nothing. There's no obligation, Helen. There's nothing here that obliges. You've left it to a guideline to be developed by the colleges. I supported that. What I have said is that it is reasonable because you have other circumstances taking place under the Mental Health Act. You may have a situation where someone in a hospital, a patient, a friend on their behalf, says, "Look, we really think this person is in a situation where they need some help." They go to the hospital administrator. This permits him, rather than throwing his hands up and saying, "I'm sorry, there's nothing I can do" -- it's permissive; it doesn't require, it doesn't say you have to, it doesn't cost anything -- to say, "I can call somebody and ask them to come in and help you out." That's all it does. It does not reinstate third-party mandatory rights advice in any way. It does not do that. It just gives an opportunity for the hospital administrator to say, "Let me call the PPAO and see if they can send someone to give you some advice." That's the intent of the motion.
The Chair: Mrs Boyd was speaking to the Liberal motion to amend.
Mrs Boyd: I've listened to the discussion very carefully and we will still have to vote against this because we are not defeatist in the sense that the Liberals are. We, as you know, have several motions still to come. We consider very seriously those motions and would urge the government to require that people be informed. We're going to vote against this, not because we disagree with any of the concerns raised by Mrs Caplan, but that we would feel unable to vote for a motion that concedes that professionals ought not to be responsible for informing someone that they found them incapable.
The Chair: I'll put the question. Shall the amendment proposed by Mrs Caplan pass? All those in favour? All those against? The motion is defeated.
We now proceed. There are three motions by the NDP: 103, 104 and 105. Mrs Boyd is it your intention to proceed with all three or only the latter two?
Mrs Boyd: No, I intend to proceed with the next one because it in no way conflicts with the motion that --
The Chair: Fine. I didn't know. We are now proceeding with the proposed motion on page 103.
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Mrs Boyd: I move that the Health Care Consent Act, 1995, as set out in schedule A to the bill be amended by adding the following section:
"Notice of finding
"15.1 If a health practitioner finds that a person is incapable with respect to a treatment, the health practitioner shall ensure that the person is advised of the finding of incapacity."
This would be complementary to the motion that the government has passed putting the responsibility in the hands of the colleges to determine the way in which this is done, the finding. It should be very clear that "The health practitioner shall ensure that the person is advised" in no way determines ahead of time whether or not that will be third-party advice or whether the health practitioners themselves will be required to do it. What it says is that assurance is there to vulnerable people, that if they are found incapable, they will be informed that they have been found incapable.
That is extremely important and I sincerely hope that the government will accept this motion because I think they believe that having passed section 15.1, the amendment that they put in themselves, that's what that means. If that's what you think it means, then hammer it down and make sure that the health care practitioner is responsible to ensure that information is given.
Mrs Caplan: My concern with this is that it would lead to the same kind of Mirandizing statement that has been so objectionable and really hasn't fostered the kind of communication that I think we need to have. While I think that this motion is well intended, I hope that instead the government will support ours, which is numbered 189, which will leave it to the colleges to determine how the form would be for each one.
My worry is that if this were to pass, you would get the unfortunate situation of someone saying, "I have the obligation under the legislation to inform you," and that would not be helpful to anyone. It's with regret that we're at this situation, that this would be the result. I think it's unfortunate, because that is the climate that we're in because of the previous legislation and the fact that people were not properly informed and educated and brought along to the point where I listened to Dr Singer and I just don't think this will achieve the purpose that it is intended to do. We will not support it.
Mrs Johns: The government will be opposing this motion also, for much the same reasons as Mrs Caplan suggested. We believe that the current notice requirements we have in the CTA are excessive. We believe this would cause this to happen again. We also believed that when we listened to people who were talking about how there needed to be some professional judgement about how you told some people about their incapacity, whether you just said, "Aunt Sally is going to be helping you make this decision," how you did that without coming out and saying, "You're incapable." So the government will be opposing this motion.
Mrs Boyd: It will not be lost on the vulnerable people of the province that both the Liberals and the Conservatives are again saying that they don't need to be informed if they're found incapable. This in no way tells how that will be done. It is complementary to the motion already passed by the government which has put in the hands of the various colleges how they will do that under their circumstances. It is up to them to build the flexibility into that, according to the motion that you yourselves have brought forward.
All this does is give assurance to those who may be found incapable that if they are found incapable, someone will let them know that, in whatever form that takes. Under your motion, it would enable the colleges, if they were worried that someone, first of all, was comatose and couldn't understand -- they could exempt that. If they thought it really might harm their patients, they could exempt that. It gives all of that flexibility into the hands of the professions, under your own motion. All this does is say: "You've got all that flexibility in how you do it. You've got all that flexibility in the methodology that you employ, the words that you employ, but you must let people know that they're incapable." I think it is very, very serious that I hear both the Liberals and the Conservatives saying to people, "We don't believe you must be informed and we are not going to ensure that, by legislation, you are informed."
The Chair: I'll put the question. We're dealing with the motion of Mrs Boyd to amend the motion contained on page 103. Shall the amendment carry?
Mrs Boyd: Recorded vote, please.
Ayes
Boyd.
Nays
Michael Brown, Doyle, Grandmaître, Guzzo, Johns, Ron Johnson, Klees, Parker, Tilson.
The Chair: The motion is defeated.
We will now proceed to a new section on schedule A and contained on page 104 of your proposed amendments. This is an amendment by Mrs Boyd.
Mrs Boyd: Under the circumstances, I wonder if we could consider 104 and 105 together. I have no hope that the government is going to pass these, but I do want to make the motions because I think it is important that we indicate the way in which we thought this rights advice ought to have been done. So if I could read them both into the record at the same time and argue on behalf of both of them?
The Chair: I certainly accept that.
Mrs Boyd: I move that the Health Care Consent Act, 1995, as set out in the schedule A to the bill, be amended by adding the following section:
"Rights advice
"15.2 If a health practitioner finds that a person is incapable with respect to a treatment, a person designated by a non-profit corporation established for the purpose of providing rights advice under this act shall,
"(a) explain to the person the significance of the finding of incapacity and the right to apply to the board for a review of the finding, unless the health practitioner certifies in writing that,
"(i) the explanation would be harmful to the person, or
"(ii) the person's condition is such that the explanation would be of no value; and
"(b) if requested, assist the person in obtaining representation for the purpose of an application to the board."
I move that the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following section:
"Rights advice
"15.3(1) If a health practitioner finds that a person is incapable with respect to a treatment of a mental disorder in any psychiatric facility, a person designated by the Psychiatric Patient Advocate Office shall,
"(a) explain to the person the significance of the finding of incapacity and the right to apply to the board for a review of the finding, unless the health practitioner certifies in writing that,
"(i) the explanation would be harmful to the person, or
"(ii) the person's condition is such that the explanation would be of no value; and
"(b) if requested, assist the person in obtaining representation for the purpose of an application to the board.
"Section 15.2 does not apply
"(2) Section 15.2 does not apply in the circumstances in which this section applies."
The thrust of these two motions would require that the health practitioner provide rights advice, in the first section 15.2, in all facilities that are not designated in the Mental Health Act as a psychiatric facility. In the second motion, if anyone is in a situation where they come under the Mental Health Act, then the Psychiatric Patient Advocate Office would be responsible for providing that advice.
I agree entirely with the arguments that Mrs Caplan put forward in terms of the Psychiatric Patient Advocate Office and in her previous act. We believe that wherever someone is under the Mental Health Act, in fact this kind of rights advice, particularly independent rights advice, is very important.
I would remind the committee of the submission that was made to us by the Consent and Capacity Review Board. They talked about the breakdown of applications in front of that board by type and they made it very clear that in terms of the Mental Health Act 80% of all applications which came to the board were applications under the psychiatric designation. So it is extremely important that we recognize that the rights of psychiatric patients be honoured, whether or not they are in one of the Ontario psychiatric hospitals.
I again would urge the government to seriously consider passing these amendments to ensure that rights advice is available to people, whether they are under the Health Care Consent Act or under the Mental Health Act.
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Mrs Johns: The government will be opposing this motion, as Mrs Boyd has already said. One of these two motions would move us further into the rights advice category than we have been in the past. What we're suggesting under these amendments is that rights advice is given to any person who has a finding of incapacity. What has happened in the past is truly that if a person has requested rights advice, they've been able to have a rights adviser and so we find this will lead us right back to where we were with the consent to treatment: long delays, access to timely health care will become something that does not exist, and it will in effect limit the quality of health care in the province of Ontario.
The Vice-Chair (Mr Ron Johnson): Do you want to speak, Mr Marchese?
Mr Marchese: Just very briefly.
Our motions would not limit the quality of health care at all. It's wrong to say that.
Mrs Boyd: Nor would it cause delays.
Mrs Johns: It would cause delays.
Mr Marchese: It wouldn't limit the quality. It would cause a delay perhaps, but it wouldn't limit the quality.
People, individuals, need the right to be notified. Our motions are quite clear with respect to giving individual people who may find themselves in these vulnerable positions the right to know. That's what it does. You're taking those rights away. You can say what you like; it doesn't go farther than before. It does not. It doesn't limit the quality of health care. It protects and gives people rights they should have in order to protect those individuals who find themselves in very difficult mental situations. What you're doing is, you're taking that right away.
Our motions are quite clear. Your motion with respect to the guidelines as you spoke earlier are not. They're not clear with respect to this. There's no clarity. We told you that. You want to believe that, but that's not true. Our motions are much clearer than your motion with respect to rights notification. But it's quite clear that we haven't been able to convince you, and so other than making these arguments, there's nothing more we can do.
The Vice-Chair: All those in favour of the motion?
Mrs Boyd: Recorded vote, please.
Ayes
Boyd, Marchese.
Nays
Michael Brown, Caplan, Doyle, Guzzo, Klees, Johns, Leadston, Parker, Tilson.
The Vice-Chair: The amendment is defeated.
The same vote for the second motion? Same vote.
Moving on to section 16, schedule A, a government amendment.
Mrs Johns: I'm on page 106 of the binder and on page 70 of Bill 19.
I move that clause 16(1)(b) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"(b) before the treatment is begun, the health practitioner is informed that the person intends to apply, or has applied, to the board for a review of the finding; and"
Our rationale for this was that we wanted to ensure that people who had applied would have that same time or that would give the same intent as people who were intending to apply and would stop the treatment until either they had applied, the 48 hours kick in or a number of the issues that were outlined in the act.
The Vice-Chair: Seeing no speakers to this, all in favour? Opposed? Carried.
Ms Johns, second amendment.
Mrs Johns: Page 107. I move that clause 16(2)(b) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"(b) before the treatment is begun, the health practitioner is informed that,
"(i) the incapable person intends to apply, or has applied, to the board for appointment of a representative to give or refuse consent to the treatment on his or her behalf, or
"(ii) another person intends to apply, or has applied, to the board to be appointed as the representative of the incapable person to give or refuse consent to the treatment on his or her behalf; and"
It's the same reasoning from the last one.
The Vice-Chair: All those in favour?
Mrs Caplan: Same vote.
The Vice-Chair: Same vote.
The third amendment with this section is an NDP amendment.
Mrs Boyd: I move that clauses 16(3)(c) and (d) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"(c) until the board gives a decision in the matter and,
"(i) the appeal period elapses without an appeal being commenced or all the other parties have informed the health practitioner that they do not intend to appeal, or
"(ii) an appeal of the board's decision is finally disposed of."
What this does is, if there is not going to be an appeal then it allows the treatment to go forward. If there is an appeal, it prevents the treatment from going forward until the board's decision is finally disposed of and, therefore, really reflects an honouring of the wishes of the individual or the substitute decision-maker.
Mrs Johns: We're opposed to this motion. I think the real discussion comes down to the onus is on who is to commence the process in clause (c)(i). In our act, the onus is on the party to come to the health practitioner. In Mrs Boyd's case, the onus is on the practitioner to -- just a minute. All of the other parties have informed the health practitioner so -- I'm sorry. So the difference is the parties have, or all of the parties have, informed.
Mrs Caplan: Could I ask you to start again so maybe somebody could understand what you're saying?
Mrs Johns: Yes. I just have to find it in here.
Mrs Caplan: You gave her the wrong briefing note.
Mrs Johns: No, it's what I thought was changed in the section. In the bill, if a party to the application before the board has informed the health practitioner that he or she intends to appeal the board's decision and ours is -- until the period for commencing the appeal has elapsed without appeal being commenced, and if the appeal period lapses without an appeal being commenced or all of the other parties have informed the health practitioner that they do not intend to appeal. So we have to wait for all of the parties to say that they aren't going to appeal the process. We find this onerous. We feel that it could cause delays and we believe that treatment should commence as quickly as possible. In the past, they've had to wait seven days, I think, and we want this process to commence as quickly as possible after the appeal process so people will not be caught with undue delays.
Mrs Caplan: I have a question.
The Vice-Chair: Actually, we'll start with Mrs Boyd; she's first on the speakers' list.
Mrs Boyd: I think it may be the same question, Mr Chair. In fact, the force of this is quite the opposite to what Mrs Johns says. It is required that you wait until the appeal period elapses. What we're saying is that it may be that no one who's already a party to this action -- and everybody knows who the parties are because they've already appeared in front of the board -- if they all say, "None of us is appealing," it allows the commencement of treatment much earlier. And that's the whole purpose of this.
Mrs Caplan: So in fact, it speeds it up.
Mrs Boyd: So either you let it elapse, which is what you've done -- and we're saying, but if nobody's going to appeal, why let it elapse? That's all we're saying.
Mrs Caplan: So if you're --
The Vice-Chair: Mrs Caplan.
Mrs Caplan: -- and that was my question.
The Vice-Chair: Fine, but you go through the Chair to do that, okay?
Mrs Caplan: Can I ask a question?
The Vice-Chair: Go ahead.
Mrs Caplan: My question is: Since this is going to speed things up as opposed to delay, why are you opposed?
Mrs Johns: Because my advisers here are telling me that it's going to slow the process down and I think that we should hear why they believe it's going to slow the process down. I think that would be --
Mrs Caplan: Because in fact --
Mrs Johns: -- because that's obviously not what we're all intending, so if it is going to --
Mrs Caplan: As I read this, in fact, it speeds things up because you don't have to wait until the end of the appeal period; you can commence before, if nobody objects. I thought it was a good idea.
Mrs Johns: Can I have an opinion from leg counsel on this, please?
Ms Joanne Gottheil: Clause (c) in the existing bill says that when the board renders a decision in the matter, the treatment may be begun if none of the parties to the application has informed the health practitioner of an intention to appeal. So if no one has said anything, the treatment may be begun. And the motion says that all of the parties have to say that they have not given an intention to appeal. So the motion requires all parties to say something, and the bill says that as long as no one has said anything, treatment may begin. That's the difference.
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Mrs Caplan: The concern that I had when I read the legislation and I saw the amendment was that a prudent practitioner would wait to protect himself.
Mrs Johns: You can see that my stand is correct, though. This amendment would take longer because they'd have to wait for every --
Mrs Caplan: No. In fact, I think this amendment would foster communication, so that you could get everybody and say, "Do you intend to appeal?" "No." "Okay, let's proceed." If they don't say anything and you're at all concerned, you just wait until the appeal period lapses because you haven't fostered that communication. I think this fosters the communication and you would get more rapid treatment, because the legislation would say, "If you check it out and nobody says they're going to appeal, go ahead." You don't have to wait. An assumption of silence, I think, would create a chill for the practitioner, who, if he wasn't given a direction, would wait. So in fact while your intention may be not to delay, I think the government's motion in the bill actually causes greater delay. This would speed things up if you could get an assertive, "We're not appealing; go ahead."
Mrs Johns: Can I have legislative counsel's opinion of what Mrs Caplan just said?
Ms Gottheil: I think it's for the ministry lawyer to answer which would be more of a delay. I can just tell you what the words say.
Ms Perun: In our view, again, the way the current clause (d) reads, "if a party to the application before the board has informed the health practitioner that he or she intends to appeal," would facilitate the treatment at an earlier stage. That's our view of clause (d).
Mrs Boyd: I think Mrs Caplan is quite right. A prudent physician, knowing that there is an appeal period during which an appeal can be launched, I think would be unwilling to start treatment. What could be more destructive of the relationship of a physician with the patient than starting treatment when that patient still has a period of time in which to decide, or the substitute decision-maker? If we want something that's destructive of communication between physicians and their patients, doing that sort of thing is likely to cause a problem.
What we're saying here is, the prudent physician will probably wait until the end of the appeal period anyway. I know the government is going to say they've saved them from liability, so if doctors only don't do things because of the threat of liability, they may be right that it would be faster. I don't believe that's the case. I think that in fact the doctors will wait, because it would be destructive of their relationship. In fact, this would encourage the practitioner -- they're all together when the board gives the decision in any case -- to say to anyone who might be a party to the thing: "Look, is anybody going to appeal? If nobody's going to appeal, I'd like to start the treatment" --
Mrs Caplan: Exactly.
Mrs Boyd: -- and get that decision to come forward a little bit more quickly.
Mrs Caplan: What sometimes happens at these hearings where there's been a concern about the treatment going forward -- you may not be clear about your intention not to appeal at that time. I believe this would speed things up.
Mr Frank Klees (York-Mackenzie): I'd like to just ask a question of counsel. If in fact all of the other parties did come forward and say they do not intend to appeal, is there anything in the existing legislation that precludes the health practitioner from proceeding with the treatment?
Ms Perun: No.
Mr Klees: So if there isn't anything in the existing legislation that precludes the treatment from taking place, don't we have the same effect here?
Mrs Caplan: If I can, Mr Chair, I would argue in favour of the amendment -- I think Mrs Boyd might make the same argument -- that no, you don't have the same effect, because the way these hearings sometimes work is, if you lost at the hearing board, you might be a little disappointed and you might just be silent or sullen and not say anything. Then the physician, who wouldn't want to hurt your feelings, wouldn't ask you anything either, but they wouldn't commence with the treatment because there is an appeal period during which you can appeal. If they were prudent, they would just wait it out.
This would allow them at the hearing time to say, "Look, are you going to appeal this?" And if people say, "No, we're not," then they proceed with the treatment.
So in fact it's a question of whether you think that silence -- especially since what I've heard from Mrs Johns is that your intention is to see treatment proceed expeditiously. I believe that's the intent of this motion, but look, we'll see what you do.
Mrs Johns: I want to ask you a question that they're putting to me to ask. You went through a scenario there where the health practitioner went to all these people and said, "Are you going to appeal this?" and they said, "No," and so he could proceed forward. What if one of the persons said, "I don't know"?
Mrs Caplan: He couldn't proceed. He'd have to wait, just as he does now.
Mrs Johns: He'd have to wait the seven days?
Mrs Caplan: Under your legislation, he'd have to wait because he's now had an utterance.
Mrs Johns: Under our legislation, they could proceed forward unless they came to us --
Mrs Caplan: No, no, no.
The Vice-Chair: Ms Caplan, sorry. Mr Tilson has addressed the Chair. Go ahead, sir.
Mr Tilson: My question is, if everyone agrees, then you're saying, "Let's get on with it," as opposed to, if there's silence, Mrs Caplan's saying someone, to be cautious -- because everybody's afraid of being sued nowadays -- would wait. That's the purpose of your amendment.
Mrs Boyd: They're not worried about being sued. We've precluded these people from liability. They're not worried about being sued.
Mr Tilson: All right. You're right, they're precluded.
Mrs Boyd: What they would be worried about is, if they go ahead with a treatment and then there's an appeal and they lose the appeal and they've already given the treatment, what is that going to do to their relationship with their patient? That's my issue.
Mr Tilson: Okay. So that's the intent.
Mrs Boyd: Yes.
Mrs Johns: Thank you very much for that debate. I think we understand it better. I'm going to have to stand it down because they're going to have to look at the legal implications of this, but I appreciate your helping me, because the discussion we've had has been very different about this amendment. So as much as you may think I hadn't thought it through, we've seen it in a very different light.
Mrs Caplan: Good. By the way, just to help you in your deliberations --
Mrs Johns: We'll talk about it after lunch.
Mrs Caplan: -- the scenario that you suggested where a practitioner does ask the question and someone says, "Well, I'm not sure," they'd be very foolish to proceed. I don't think they would. I think they'd wait to see what the person intended to do. So in that context, I don't think that your legislation would give them any comfort.
Mrs Johns: What we didn't want to have is just seven days of waiting if we didn't have to.
Mr Tilson: Getting to your scenario, the practitioner is waiting to hear from somebody. If they proceed, aren't they breaking the law?
Mrs Caplan: No, not under yours.
Mr Tilson: Not under ours.
The Vice-Chair: Mr Tilson, if we're going to stand it down, we're going to come back to it anyway.
Mr Tilson: To be fair, I want to understand what the intent is.
Mrs Caplan: Your law today says, if there's silence, they can proceed. The point is, if there's silence, they may be concerned about proceeding.
Mr Tilson: Okay. Thank you.
The Vice-Chair: Can I get unanimous consent to stand it down? Okay. Moving on to the next amendment, the government amendment.
Mrs Johns: It's on page 109. That is page 72 of the bill.
I move that subsection 16(4) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "section 23" in the last line and substituting "subsection 23(1)."
The definition of "emergency" is contained in subsection 23(1) and we wanted to tie this in to this section. It's a cross-referencing difference.
The Vice-Chair: Seeing no speakers, all those in favour? Carried.
On to section 17, shall section 17 carry? Carried.
Section 18, schedule A, a Liberal amendment.
Mrs Caplan: I move that subsection 18(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "child or" in the first line of paragraph 5 and by adding the following paragraph:
"4.1 A child of the incapable person."
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Mr Tilson: Mr Chair, on a point of order: We carried section 17. Did we carry section 16, as amended?
The Vice-Chair: No, because one of the amendments was postponed. We stood down that one.
Mrs Caplan: In speaking to this one, 18(1), what we're adding under 4.1 -- it says, "the incapable person's spouse or partner," and the next one is "a child or parent of an incapable person." This is the hierarchy, and we believe that it would be better if you separated out parents and children in the hierarchy.
This is the reason: Government has stated its intention to have the public guardian and trustee come in as a last resort. It's been suggested that when you have people in the hierarchy -- let's say you have four children, as I do, and they don't agree. If it splits two-two, the public guardian and trustee comes in, so there would be an encouragement on the children to come to terms and agree. But at least they're all children; they're at the same point in the hierarchy. But if my mother and my children disagree, they have different interests.
So we believe that parents and children should be separated in the hierarchy to keep the public guardian and trustee out. If it is your intention that the public guardian and trustee be the last resort, I don't think you want to create in your hierarchy a situation where different interests in the hierarchy could lead to the public guardian and trustee coming in.
I think I've explained it clearly. I'm not going to go on at any length. I hope you will support this. In fact, in the previous legislation, children and parents were in separate categories. I think that is appropriate, because they do have different interests.
Mrs Johns: We took this to a number of our meetings in the mornings before the deputants, because we had some discussion about this very issue. We had one deputant very early on suggest that we should move these off, and then no one else commented on it after that. When that deputant came forward, they suggested that a person in their 40s and 50s could well have a parent and adult children, and who were we as government to decide which one of those people had priority over the other one? Obviously, if they were fighting about it, they both cared about the individual.
We heard from the public guardian and trustee in one of our meetings that as two opposing groups come together and they find out that if they don't agree, or one of them doesn't choose, the public guardian will take over, it's a very strong incentive for those people to decide on one or the other in the hierarchy or to decide on the decision together, unanimously, as opposed to someone who doesn't know the people.
I understand why you're saying it, as a result of us having the same discussion, but we believe as government that we're not the people who should be telling people that a child is more important to a person than a parent, that an adult child is more important in the decision-making process than a parent. So we have decided to oppose your motion, although I know it's something that we've spent a lot of time thinking about.
Mrs Boyd: I want to support this motion. In the circumstances that Mrs Johns says, people can name whoever they like in a power of attorney, and if people know that the hierarchy is such that someone would come ahead of the person they want in the hierarchy, then they should be naming somebody anyway. There's a fail-safe there. There is not a fail-safe in terms of having them in the same category. In fact, you all have done all sorts of motherhood statements about how one of the things you want to accomplish with this bill is supporting families, and in fact what you're doing by not having those two groups separated clearly in the hierarchy, so that people can make decisions themselves if they don't like the hierarchy, is to sow the seeds of dissent within families.
I believe, Mrs Johns, that you're incorrect. I believe more than one person -- I believe several of the lawyers who came before this committee suggested that the hierarchy should separate those two things out. I do not think it was just one deputant. I think there were a number of people who said they didn't understand why that had been changed, that if people want to change the hierarchy, they have the option of naming a person. With them lumped into one category, I think that's much more confusing for people in terms of making their own choices. We will be voting for this amendment.
Mrs Caplan: I just want to let you know what your opposition could result in, and that is having the public guardian and trustee coming in more times than are required. I agree that everybody should name a substitute and a power of attorney, but lots of people are not going to do that. The one thing you want to do is stop conflict within the family. When you lump everybody in the family together, you're going to have the public guardian and trustee come in more times than if you separate them. It's not a question of who's more important. If people want to decide for themselves who's more important, that's fine. It's not a question of, are parents or children more important? The issue here is, do you want those family members all lumped into one category, which will foster dissent because they do have different interests, which will bring the public guardian and trustee in more times?
I believe that you who have been saying, "We want the public guardian and trustee to come in as a last resort. We don't want them to come in too often. We want to leave this to families to sort out," are going to have the exact opposite result by lumping all family into one.
Your example, which says the threat of the public guardian and trustee coming in will resolve the issue, let me tell you, if you think that resolves issues in families, it doesn't. It makes it worse. So think about it, because you've been telling people: "The public guardian and trustee is going to get out of your face. This legislation is going to leave it to families." I think if you do not support this amendment, you're going to have the opposite effect of that which you desire. It's a political decision. It's not something that anybody else is going to do. This is a decision of your government and I think it flies in the face of your commitment to leave it to families.
We have no problem in putting adult children ahead in the hierarchy. If you want to reverse it and put parents ahead in the hierarchy, I'll live with that. I'm just saying separate them.
Mrs Johns: I just wanted to comment that we considered the conflict aspect when we talked about this before. As you quite rightly pointed out very much earlier, with children or brothers and sisters on the same line, you will have conflict in different lines at any time. We know that there will be conflict if families choose not to work together for the best result for the person who's incapable, so we understand that issue and we have thought about it.
Mrs Caplan: I just think this minimizes it and I'm sorry that you are not supporting it. At this point I just want to go on the record as saying that if you don't support something like this, I'm trying to think of what it is you're likely going to support in the amendments that are coming forward.
Mr Tilson: Oh, come on.
Mrs Caplan: I'm getting very frustrated. We've worked very hard to improve your bill.
Mr Tilson: We just stood one down to consider one of your proposals.
The Vice-Chair: Mr Tilson, please.
Mr Tilson: Give me a break.
Mrs Caplan: We're working very hard to try and bring forward things that are going to be helpful and improve that are not in any way --
Mr Tilson: To say we're not listening to you is insulting.
Mrs Caplan: -- contrary to the things that you have stated as goals of the legislation, and on something like this one, frankly, I'm surprised that you wouldn't support this, because it fits with everything that you have said you believe in.
Mrs Johns: It also fits with the fact that I said we talked about this a lot, and so we obviously, all three sides, were considering this issue. It's a very important issue and we wanted to make sure we got it right, and we believe we're getting it right by leaving it this way. I'm sorry that you don't believe we're getting it right.
The Vice-Chair: All those in favour of the motion?
Mrs Boyd: Recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
NAYS
Doyle, Guzzo, Johns, Klees, Leadston, Martiniuk, Parker, Tilson.
The Vice-Chair: The amendment is defeated. Moving on to the second amendment in this section, the NDP.
Mrs Boyd: I move that section 18 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following subsections:
"Statement by family member
"(6.1) A person described in paragraph 4, 5, 6, 7 or 8 of subsection (1) shall not give or refuse consent on the incapable person's behalf without first making a statement that,
"(a) identifies his or her relationship to the incapable person;
"(b) indicates that he or she has no reason to believe that the incapable person, before becoming incapable, would have objected to him or her making the decision to give or refuse consent;
"(c) indicates that he or she has no reason to believe that another person referred to in the same paragraph or an earlier paragraph of subsection (1) claims authority to give or refuse consent; and
"(d) if the person claims authority to give or refuse consent under subsection (4), indicates that he or she believes that no other person described in an earlier paragraph or the same paragraph of subsection (1) exists, or that although such a person exists, the person is not a person described in paragraph 1, 2 or 3 and would not object to him or her making the decision.
"Form of statement
"(6.2) A statement under subsection (6.1) may be made in the prescribed form."
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The argument for this is that a number of people coming forward to the committee expressed concern that the statement of relationship would not be there. It is very important for us to ensure that when we are giving vulnerable people over into the hands of substitute decision-makers for their health care, the appropriate efforts have been made to ensure that the person meets all the requirements we've set out.
I'd read to you and remind you of what Judith Wahl of the Advocacy Centre for the Elderly had to say on this matter: The HCCA has no requirement of a written or verbal statement whenever a substitute decision-maker is stepping in to make treatment, admission or service decisions. This allows the possibility that where a health practitioner decides that Mrs Smith is not capable of making a decision without Mrs Smith knowing, then a decision may be made and acted upon before Mrs Smith learns anything of what is going on. This surely undermines autonomy. Something more is needed to drive home the seriousness of the situation to potential substitute decision-makers and ensure that only someone with proper authority assumes the decision-making role.
The form of our statement under subsection (6.2) can be in a prescribed form; it would allow a checkoff form if that were decided by the government in terms of making regulation. It could identify all of these things. The person could simply check it off and sign it and that would be a very appropriate kind of assurance to vulnerable people. But only someone who has the appropriate authority would be acting as a substitute decision-maker. Particularly because this government has decided that those who are determined to be incapable don't need necessarily to be informed of that, this is a safeguard for vulnerable persons.
Mrs Johns: The government opposes written family statements, and I'd like to talk about the reasons why we do. We believe that they're overly bureaucratic and they're introducing a lot of red tape to the system. We heard a number of different organizations come forward and talk about the formal statements, and in fact I have a quote from the Hospital for Sick Children, which said: "We also strongly support the elimination of the requirement for a formal family member statement, as has been required in the Consent to Treatment Act.... It was confusing for parents and it required an unreasonable use of our staff's time."
We believe that by not putting into effect written statements, what we're doing is restoring the faith in the family that they will act appropriately and the proper person will come forward to make the decisions for the person who is incapable.
Mrs Caplan: We have some amendments further on that deal with the need to have a relationship with the person within a period of time. The concern that I have with this is the written statement. Actually, I'd like something that would foster the communication and the discussion, but I think the same argument that I made about the Mirandizing of the practitioners is the same problem I have. While there are some parts of this that I would like to support if it didn't require it in written form, I do think the obligation to have a checkoff or something written would lead to an unnecessarily bureaucratic approach. So if Mrs Boyd would consider something that just required a verbal acknowledgement, I would be supportive of that, but I'm not happy with (6.2) prescribing it in written form.
Mr Marchese: I just want to read from the final summary again, page 49, to show that other groups, other than people like hospitals -- and you mentioned the Hospital for Sick Children -- are very concerned about this. So it's my usual question about, who are we informed by? They're usually informed by the medical association or by doctors or a hospital, and we're informed by a lot of other people who are directly involved in the field dealing with vulnerable people. That's why I do this from time to time.
Two organizations say the following: "Restore the requirement of a formal statement by family members who propose to give or refuse consent on the incapable person's behalf to ensure their accountability." That is CMHA and OMOD.
"The substitute decision-maker should still be required to make a `statement of relationship' to the incapable person before being able to give or refuse consent." That's PACE.
"Before a relative makes a decision on behalf of an incapable person, the relative should be required to state the following:
" -- the nature of his or her relationship to the incapable person;
" -- the relative has no reason to believe that the incapable person, prior to the incapacity, would have objected to the relative acting as a substitute decision-maker; and
" -- the relative understands his or responsibilities to make a decision according to the principles set out in s. 19.'"
That was PPAO.
"Reinstate the requirement that the substitute decision-maker must make a statement of personal contact with the incapable person over the last 12 months." That was OMOD.
"Stipulate that the person listed in s. 18 who proposes to make a decision on behalf of an incapable person must provide a written statement that the person with higher ranking would not object to the person making the decision." That was Mr Winninger.
The point of these statements is to say that there are enough people who are concerned about possible abuses or possible ways that the autonomy of individuals could be undermined and the respect for those individuals could be undermined. That's what we're getting at with the statement. I understand that you're saying it's overly bureaucratic. We don't agree. We understand it imposes some duty to have to go through it and review and so on. You call that overly bureaucratic; we call that protection. Because people are concerned.
When it comes to how we respect those individuals who are in a very vulnerable situation, do we call that overly bureaucratic because we require a statement of them, or do we say, "How do we find ways to protect them?" That's why we read out these statements, to show you that people in the field are very concerned about this. I say you should be too, as opposed to saying, "Well, let's read into the record what the Hospital for Sick Children said, and they say, `It takes an unreasonable time from us.'" I understand it takes time, but if you're protecting people --
Mrs Johns: They said it was confusing also.
Interjection: Well, then, prescribe a different form.
Mr Marchese: They say it was confusing. If they say that it's confusing, let's do it in a clear way. Let's make it more clear, whatever you think is required to make it clear, but don't just dismiss it because you say it takes too long or it's bureaucratic, and now we say it's confusing. We don't think it's confusing. If you believe this is important, then let's make it clear. Obviously, that's not the issue. You just don't want to do it.
Mr Tilson: We've got a philosophical difference. How's that?
Mr Marchese: All right. So you're saying as well, in terms of an argument, "We're restoring the faith in family." We're having the same old argument here. We think that most families are good. We've always said that. That's not the issue. The issue is where there is the potential for abuse in some cases, we're saying impose an obligation through a written statement so that people who do this understand the seriousness of what they're doing, as opposed to simply saying: "Well, we just trust them. It's okay. Everything is all right." We think that's a wrong approach to be taking.
In terms of Mrs Caplan's approach, written versus another verbal acknowledgement, we believe that a written statement is clearer, but if the government were to accept some other form of acknowledgement, we would be willing to accept something like that as well, if that's what it takes. What we want is something that reminds people of their obligations and the seriousness of what they're doing. What you have doesn't do that. What we have does it, but if you think there's something else that moves in the direction of what Mrs Caplan is saying, we'd be willing to look at that as well. But please listen to the people who have come in front of this committee who say: "We want this statement and you're not listening. You're listening to the hospital, but you're not listening to the other groups that are rooted in the communities dealing with vulnerable people." Thank you.
The Vice-Chair: Seeing no other speakers, I'll call the vote.
Mrs Boyd: Recorded vote.
Ayes
Boyd, Marchese.
NAYS
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Klees, Leadston, Martiniuk, Parker, Tilson.
The Vice-Chair: The amendment is defeated. It is now 12. This committee will recess until 1 pm.
The committee recessed from 1201 to 1300.
The Vice-Chair: We are on section 18, schedule A. Subsection 18(10), page 112, is the next amendment.
Mrs Boyd: I move that subsection 18(10) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "blood, marriage or adoption" in the last line and substituting "blood or adoption."
The purposes of this are to respond to the number of people who came forward during our consultations who were concerned that people who are only tangentially related to someone through marriage might become under the system of hierarchy a person who could make substitute decisions for them. There were those who talked about the issue of fathers-in-law, for example, making decisions on people's part.
Judith Wahl of the Advocacy Centre for the Elderly said: "The HCCA now defines `relative' as a person who is related by blood, marriage or adoption. This definition greatly extends the number of potential SDMs to a large number of relatives by marriage, so that Mrs Smith's husband's second cousin may become a candidate for a SDM to make an admission decision on behalf of Mrs Smith. Mrs Smith may never have heard of this person before."
I have three siblings, all of whom are married. All of their partners have brothers and sisters and many relatives. If I just look at my own situation in terms of who would be a relative by marriage to me, I am very concerned about this sort of situation. If I wanted my husband's father's second cousin to be my substitute decision-maker, I would name that in my power of attorney. I don't find it very acceptable that we are allowing that kind of distance as an automatic capability for someone, and I sincerely hope the government will change its mind on this one.
Mrs Johns: We oppose this motion. What we heard during the course of the events was people asking for the definition of "relative" to be provided and we believe we have done that. I believe, as the daughter-in-law in a family, that at some time it may be appropriate for me to make decisions, as a result of my marriage, for my mother-in-law. I believe that people believe that through marriage it should give them some right or some ability to help in the decision-making process if there is not someone who is closer in line to be making that decision. I believe that the PGT should be the last person on the list and that truly people who come together through marriage should have some ability to assist in some choices as a substitute decision-maker.
Mr Michael Brown: I just have a question. I think it's a legal question. I just want to know how legal counsel defines "marriage" in terms of what the relationships are. Not being a lawyer, somebody could maybe help me at how far this might extend.
The Chair: Could the legislative counsel help us in that regard?
Mr Michael Brown: Just a straight legality.
Ms Gottheil: I think it would just have its ordinary dictionary meaning, marriage.
Mr Michael Brown: So that would include the second cousin of my wife's sister.
Ms Gottheil: Yes.
Mr Michael Brown: Of my wife too.
Mrs Boyd: In answer to Mrs Johns's comment, if she were acceptable to her mother-in-law as a substitute decision-maker over anyone else or if she were the only person available, her mother-in-law could name her in a power of attorney. That's an odd case. That's an unusual case. I can assure you that my mother-in-law, for example, has made a power of attorney precisely for that reason, and there's no preclusion from people naming who they want. It's this automatic issue.
Quite frankly, we had many people come in front of us who said they had no family they knew of, but the ramifications of this are that someone very distant could hear that someone was in a vulnerable position, needed a decision-maker and come forward and be accepted without any kind of statement of relationship because you've already deleted that, could come forward without any kind of knowledge of what the wishes of the person were and take over as both guardian of personal care and guardian of property under this. I just believe that's very inappropriate.
Mrs Caplan: Given the explanation of just how broad this would be, that it's not restricted to the close family at all and could be so far distant that there is nothing that requires contact or relationship prior to this, I have concerns about just how broad you've left it open. Following the explanation, we're going to support this amendment.
Mrs Johns: I have to reinforce that anyone else could apply to become the substitute decision-maker if they believed they would be better capable of doing it, so if it then becomes a friend or something, they could apply to be a substitute decision-maker. That's important for us to remember. But if we don't take marriage in it allows that very important link which is the daughter-in-law, the son-in-law, who I think is a very important person to be involved in the care of an incapable person.
Mr Tilson: There is a protection with the issue of, specifically, a statutory guardian. The public guardian has to approve, whoever it is. Just to take the example, some 19th cousin by marriage just can't come out of the blue, and they're living over in China or some place and the incapable person is here. It doesn't happen just like that.
Mrs Boyd: This government has removed any requirement that people have some relationship to the individual. I wonder if Mr Tilson can tell us on what grounds the public guardian and trustee would turn someone down, given that there is absolutely no requirement for any form of relationship in this situation.
Mr Tilson: No, that's not quite true. There are going to be guidelines put forward to assist the public guardian to make decisions. They're not going to do it just on the snap of a finger. There will be a process, just like everything else we're doing. There is going to be a process. We've undertaken to do that.
Mrs Boyd: So from having a protection within legislation that was required, again you're telling vulnerable people they have to trust that once this law is in place, guidelines will be available that may or may not -- because there's no consultation on regulations -- meet their concerns around this issue.
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Mr Tilson: I guess we could go on and on; we could go to a philosophical difference, so I will stop.
The Chair: Yes, we do indeed sometimes. I'll put the question since there's no further comment.
Mrs Boyd: Recorded vote, please.
Ayes
Boyd, Michael Brown, Caplan, Marchese.
NAYS
Doyle, Johns, Ron Johnson, Klees, Leadston, Parker, Tilson.
The Chair: The amendment is defeated.
I'll now put to you section 18, as not amended. All those in favour? All those against? Carried.
Going on to section 19 and, in particular, subsection 19(1), which I believe is contained on page 113, being a motion of Mrs Boyd.
Mrs Boyd: I move that paragraphs 1 and 2 of subsection 19(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable, the person shall give or refuse consent in accordance with the wish.
"2. If the person does not know of a wish applicable to the circumstances that the incapable person expressed while capable, the person shall act in the incapable person's best interests."
This is simply an amendment which ensures that the person who is deciding the best interests of a person is obliged to disclose whether he or she knows of any oral or written wishes expressed. It is an added protection for people, that in fact there is a disclosure requirement, and that the individual substitute decisions notion of best interests would always be mitigated by that expressed wish.
Mrs Johns: First of all, this section takes out the portions that talk about 16 years old. As we have talked about that before, we believe the 16 should remain in there. So we will be opposed to this motion.
The Chair: If there's no further comment, I'll put the amendment contained on 113.
Mrs Boyd: Recorded vote, please.
Ayes
Boyd, Marchese.
NAYS
Michael Brown, Caplan, Doyle, Johns, Ron Johnson, Klees, Leadston, Parker, Tilson.
The Chair: I declare the amendment defeated.
Going on to 19(3) which is contained on, I believe, 114 of your proposed amendments.
Mrs Boyd: I move that section 19 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following subsection:
"Disclosure of wishes re withholding or withdrawing treatment
"(3) A person who gives or refuses consent on an incapable person's behalf to a plan of treatment that provides for the withholding or withdrawal of treatment shall disclose to the health practitioner any wishes expressed by the incapable person with respect to the treatment."
This amendment ensures that the person who's deciding the best interests should be obliged to disclose if the person had expressed a wish about withholding or withdrawing treatment, especially with regard to the termination of treatment where a person cannot recover from physical or mental incapacity. We have many situations. Treatment in many cases is palliative, and people may well have expressed wishes about when and how they would like withdrawal of treatment at that stage in their life.
I quote the presentation that was made to the committee by David Winninger. He notes:
"Paragraph 19(2)(c)1 permits the substitute decision-maker, when considering the best interests of an incapable person, to consider not only whether the treatment will improve the incapable person's condition, but also whether it will prevent further deterioration or reduce the rate of deterioration. This may in fact conflict with what are called living will provisions expressed by the incapable person while previously capable. The person deciding the best interests of an incapable person should be obliged to disclose whether he or she knows of any oral or written wishes expressed with regard to the termination of treatment where a person cannot recover from physical or mental incapacity."
We certainly heard some people coming before the committee who indicated their belief that it should never be possible to withdraw or withhold treatment, and others who came forward saying this is very important if people have expressed wishes around this kind of situation. Many people are aware for a considerable time while they are capable that their condition is terminal and may have very strong ideas about what kind of treatment they are prepared to withstand and when they believe the ending of that treatment is appropriate in their case. It should be a requirement that anyone who is going to make decisions on their behalf when they're incapable first of all disclose that those wishes have been expressed and, one would always hope, would then consider honouring those wishes as being in the best interests of the individual.
Mrs Johns: We believe this already happens in some ways in the act, and I want to talk about that for a minute. With a substitute decision-maker who knows the wishes of an incapable person, he has to rely on those to make decisions. We agree that the substitute decision-maker has to listen to the wishes of the person and has to make decisions for that person in accordance with the information. What we object to in this amendment is that all this information then has to be disclosed to the health practitioner. If the substitute decision-maker is making the decisions for the person, is the person selected, we believe that as a result he will have to make decisions based on the best interests of the person. If he doesn't do that, he is subject to the offences as outlined in I think section 80, 81 or 82. We believe the substitute decision-maker is bound by the wishes he knows the incapable person has suggested, and then is further covered because it's an offence not to listen to those wishes.
Mrs Boyd: In this bill, a health care practitioner who believes that a substitute decision-maker is not acting according to the wishes of the incapable person has the ability, the obligation, to appeal to the Consent and Capacity Board. How is the health care practitioner supposed to know that there were wishes expressed if the person is not required to disclose those to the health care practitioner? How is the health care practitioner going to be in a position to know that the substitute decision-maker is not acting according to the wishes of the individual?
Mrs Caplan: I have no problem with this. It doesn't require paperwork and it would foster a conversation that I think would be an appropriate conversation. These things don't happen in vacuums and in isolation. Certainly at the end stages of someone's life there are all kinds of conflicting emotions occurring, and it's important to have conversations about this and to encourage those conversations about, "What did your mother say?"
It would be nice if everyone had a power of attorney where they'd written it down. For example, in my power of attorney, I have very clearly expressed it as a value that says that if I am terminally ill, I want pain management to the point that it might hasten my death and that's okay with me. It's my right to write that down, to express that wish.
When you're talking to your parents -- and I've been encouraging everyone I know to make powers of attorney; not everyone is comfortable making it -- if you have a conversation with them, they will say, "Oh, if it's a choice of lingering in pain, give me the painkillers." When the time comes and they haven't written down a power of attorney, I think it's appropriate to have an environment where the question might get asked: "Have you thought about it? What did your mom," or dad or brother or sister or whoever it happens to be you're acting in behalf of, "say about this?" If there's a requirement to disclose, the practitioner has an obligation -- or not even an obligation, but it would foster the conversation to ask the question.
I think that would be positive, because for the person making the decision, it would remove any of those conflicts within them about what they're deciding, even though they may know in their heart that the person's wish was to do something or withdraw treatment that might hasten their death. It's very hard in those situations to let go, so you might be tempted to do something or to permit something that would be contrary to an expressed wish in a conversation at another point in time. So anything that will foster communication is positive.
We're going to support this. It doesn't require paperwork. All it does is foster a communication that I think is important at a difficult time in everyone's lives.
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Mrs Johns: With the health practitioner, what we believed was happening was that in some cases they may have external knowledge about the situation. For example, they may have always been this person's doctor, so they would know the wishes. That's what we thought. If the substitute decision-maker was bringing forward other desires and wishes they had heard, you both are making a very good comment about something we didn't think about, that maybe there should be an exchange between those two people.
Legal counsel would like to have a look at the wording. I apologize for standing this down. I don't really want to stand things down today, but on the other side, I want to make sure we get it right. If I could just have them look at the wording and bring it back in a little while, I would appreciate that. I think you make a very good point. Thank you.
The Chair: Is there unanimous consent to stand down the amendment? Agreed. So the whole section 19 will be stood down also.
We're dealing with the new section 19.1 proposed by the NDP. I believe that's 115.
Mrs Boyd: I'd like to read this into the record, although we had a lengthy discussion yesterday and I have very little hope that the government has changed its mind overnight, although I would wish they would.
I move that the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following section:
"Electric shock as aversive conditioning
"19.1(1) A person shall not consent on another person's behalf to any treatment that involves the use of electric shock as aversive conditioning unless,
"(a) on application, the Ontario Court (General Division) authorizes the person to consent;
"(b) the treatment will be administered in a facility approved by the court;
"(c) the facility where the treatment is to be administered has an ethics committee that conforms to standards established by the College of Psychologists of Ontario; and
"(d) the treatment is not being administered for the purpose of research.
"Application of clause (1)(d)
"(2) Clause (1)(d) applies despite paragraph 1 of section 5."
The Chair: We have aired this particular topic re the capacity board rather than the court. Have the positions of the parties changed in regard to this amendment?
Mrs Caplan: In fact the position hasn't changed. We've said we are not comfortable with the way the government has dealt with the matter. We believe Comsoc facilities should be able to provide this treatment but that individual practitioners should not be able to provide the treatment outside a Comsoc facility unless there has been approval by the Consent and Capacity Board. The concern we have with this amendment is that it presents a potentially costly and legalistic approach to something that we think should be dealt with by the Consent and Capacity Board.
The conundrum I have is that because the government has already dealt with this matter, it is not going to accept this if it wouldn't accept our reasonable amendment for the Consent and Capacity Board. While I don't like this, my sense is that it's kind of better than nothing, but they're not going to accept it anyway, so is it just going through the motions to say something is better than nothing?
But we don't want to send out the message that we think a court process is appropriate, so after some consultation with my colleagues, we're not going to be supporting this amendment. But we hope that the government will reconsider and reinstate or consider at some point even through regulation -- and they can do that -- requiring by regulation that the Consent and Capacity Board must approve the use of this therapy for incapable people outside of Comsoc facilities. They have the power to do that. I hope they do it. It is our wish that they do it.
We don't think people should have to go to court, but we do think there has to be some kind of accountability for practitioners beyond the guidelines which their colleges may put in place because of the potential abuse -- to be really clear -- and, second, because there will be no accountability except through an after-the-fact complaint to the college, and that procedure does not work well for controversial procedures such as this. I wanted to get that explanation on the record at this time.
The Chair: I assume, Mrs Johns, the government is opposed to this motion?
Mrs Johns: Yes.
The Chair: We can proceed with the vote.
Mr Marchese: Recorded vote, Mr Chair.
Ayes
Boyd, Marchese.
NAYS
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
The Chair: The motion is defeated.
We are proceeding to section 20. There are no suggested amendments. Are there any comments? If not, shall section 20 of schedule A pass? Carried.
Moving on to section 21, we have an amendment to section 21 proposed by the third party, on page 116.
Mrs Boyd: This is a consequent amendment. Had the previous amendment passed it would have had some meaning, but it has no meaning and therefore we withdraw it.
The Chair: Thank you. Shall section 21 carry? Carried.
Moving to section 22, shall section 22 carry? Carried.
Section 23. We have a third-party suggested amendment, set out on page 117.
Mrs Boyd: I move that clause 23(3)(c) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "steps that are reasonable in the circumstances have been taken" in the first and second lines and substituting "every effort has been made."
The impact of this would be to ensure that in those cases where emergency treatment is going to be provided and the issue is around whether people have been able to communicate with the person in those circumstances, every effort is made rather than just reasonable steps taken. We had a number of different people come in front of the committee who felt there should be an obligation on the part of the health care professional to be much more proactive than is suggested in the wording now in the bill. Again I would quote David Winninger, who said:
"Section 23 of the new legislation permits emergency treatment to be given without consent of an apparently capable person due to failure to communicate because of language barrier or disability, provided reasonable steps are taken to find a practical means of communication and there is no reason to believe the person did not want treatment. I can understand why we wouldn't want patients dying simply because English may not be their first language, and we don't want to put their lives in peril. On the other hand, it would be more reassuring if the section provided a mandatory responsibility for health practitioners to try to obtain an interpreter in these kinds of cases, both for the disabled and people who have language barriers."
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Mrs Johns: The government is opposed to this motion. I understand why Mrs Boyd is putting it forward. We believe "steps that are reasonable in the circumstances" -- that the health practitioner will try as much as he possibly can to be able to get someone there to assist in the communication. By saying "every effort has been made," we think it virtually ties the hands of the health practitioner because there will always be that second-guessing in his mind, "Have I done absolutely everything I can?" We believe it will be difficult, slow the process down -- it's an emergency situation we're talking about, remember -- and we believe practitioners will take "steps that are reasonable in the circumstances."
Mrs Caplan: I guess my question really is for Halyna. While people have expressed concerns about the phrase "steps that are reasonable in the circumstances," I would hope that means every effort. But more than that, my question really has to do with the common law. I think the common law has a fairly onerous test for the term "reasonable," the case law.
Ms Perun: I think the words "steps that are reasonable in the circumstances" are in fact more flexible than "every effort has been made."
Mr Marchese: That's just the point. They are very different, and "every effort has been made" imposes a greater responsibility on the practitioner to find out what it is one needs to do, in the event that someone is disabled, to attempt to find an interpreter for a person, whatever language that might be; or if it's a language with respect to an individual, that one makes every effort to interpret what that might mean. Our language imposes a greater responsibility on the practitioner, which we think is important as a way of protecting those individuals in those kinds of circumstances.
I understand that you want to make it less restrictive to the practitioner, and that's what your language does: "steps that are reasonable." Any steps one takes can be presumed to be reasonable, and thereby the physician or the practitioner has done one or two things and, "We've done it, it's justifiable, and we move on." We think our language puts greater responsibility to think about what one needs to do under the circumstances. That gives greater protection to individuals, and we think that's what is needed.
Mrs Boyd: I don't know what happens in most cities, but I've spent lots of time in hospitals in London, and when someone comes into emergency and is unable to speak English, the practice traditionally has been for someone to get on the PA system and say, "Is there anyone in the hospital who speaks Portuguese?" and ask them to attend at the emergency department. If they don't appear, that's the reasonable effort, that's all that happens, even though in London for the last eight years we have had a cultural interpreter program that has trained people to interpret in 15 different languages and to be available to health care professionals.
It's a very specific thing I'm concerned about. I do not think putting out on a PA system, "Is there anybody in the hospital who speaks" a particular language is the kind of effort we want to see health care professionals doing, yet that is the practice in many places even though other services are available, and that really worries me.
It becomes even worse if we think of the communication difficulties, for example, of the young man who came to talk to us through an interpreter with his Bliss board. In many, many cites there are people who are able to interpret Bliss symbols. What is a reasonable effort in those cases? I think we want a higher onus on these professionals. I'm quite discouraged that at every single step, what this government is trying to do is lessen the ethical commitment and the mandatory necessity of health professionals to act in the best interests of their patients. I don't understand it.
I think you need to make this fairly strong, because communication difficulties can really affect the future of patients if they are not able to make their wishes known. And let's face it, this is in this whole section around consent. For someone to have to endure a treatment because a physician has not made a strong effort to get someone who can tell that physician what the wishes of that individual might be is unconscionable. Here we are again, saying: "That might be a little tough for the physicians. We're putting too many duties on physicians." Sorry, I don't think the vulnerable people of this province would agree with you.
Mrs Johns: I just want to draw the attention of everyone to the fact that we're talking about an emergency situation. Also, if we look at subsection 23(7), page 78, "Treatment under subsection (3)" -- the section we're talking about right now -- "may be continued only for as long as is reasonably necessary to find a practical means of enabling the communication to take place so that the person can give or refuse consent to the continuation of the treatment." We really truly believe we have asked them to be as expedient as possible to get this communication problem under control.
Mrs Caplan: Actually, that last comment helped. The concern I had here was because of the way it was listed in the legislation, where (a) is "there is an emergency," the suggestion is that by the time you get down to (c) it's not such an emergency. I can understand this amendment in the context of there not being an emergency. If you're assuring us that where there is not an emergency situation, and if that's what you're saying section 23 does, I'm prepared to not support this amendment, because we wouldn't want to do anything that would deter or in any way stop treatment in an emergency situation.
So my question is, why do you say, "there is an emergency" in (a) and then go on to further define (c) -- it seems to be in a separate context. That's a little confusing, although this is under the heading of "Emergency Treatment." Is that because some emergencies are more of an emergency than others? Well, it's true. You can come into the emergency room with a broken leg and that's considered an emergency, but it wouldn't hurt to call the translation folks to come in, because if you sit for another 10 minutes you're not going to end up with gangrene, whereas if you sit three days you've got a serious problem. Or if you're in a lot of pain, the apparent suffering thing should allow for treatment immediately.
I would like that clarified for the record. Everyone wants to see someone who is in distress be communicated with to determine that they have given consent for a treatment, and I think it's reasonable that every best effort be used to do that. I've been quite comfortable with the notion of reasonable steps in an emergency situation, but if this is less of an emergency situation than 23(3)(a) would imply, I'd like some clarification.
Mrs Johns: I'm going to give you my interpretation, and then you can get legal interpretation. I want to draw your attention to subsection 23(1), where it says, "For the purpose of this section and section 25, there is an emergency if the person...." It talks about that. Also in subsection 23(3), where you were talking about (a) being less than (c), as you notice, after clause 23(3)(d) there is an "and," so it means (a) and (b) and (c) and (d) and (e).
Mrs Caplan: You see, the difficulty here is where you have the "and." You have subsection (1), then you have (2), that says "(a) there is an emergency; and (b)." Then subsection (3), which is the one we're dealing with now, has "(a) there is an emergency;" but there's no "and" there. If there was an "and" there, it would give me the same comfort I have in subsection (2).
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The Chair: Could we have a legal interpretation.
Ms Perun: The "and" at the end between clause 23(3)(d) and clause 23(3)(e) links all clauses together, so you do not have to repeat "and" after every clause.
Mrs Caplan: Are you sure?
Ms Perun: You read the entire section together. So "emergency" applies, the communication required, there's some issue around finding the communication. You read all of it together.
Mrs Caplan: In that case, we will not be supporting that amendment.
Mrs Boyd: I have a comment. It's scant comfort to a Spanish-speaking Jehovah's Witness, for example, that they've already received blood when they get a chance to communicate how they felt about that. That is a very common kind of situation, where people have very strong views about what they would or would not accept. Whatever we think of the decision they might have made, the reality is that we owe it to them to make every effort to find out what their wishes are.
Mrs Caplan: I'm not going to support the amendment. Mrs Boyd has used a case that, while some might say that's a very good example, my view is that in those cases where people feel so strongly, they usually carry a card in their wallet. It is common practice in emergency rooms to look for that directive, especially since the court case that dealt with that. I don't have a concern with the case she's cited, because people who have that belief usually indicate in some way. The concern was more for someone with a language capability to be told and communicated with about the procedure to be undertaken, not where they held such a strong belief. That's why we're comfortable in voting against this amendment.
The Chair: Shall the amendment pass?
Mrs Boyd: Recorded vote, please.
Ayes
Boyd, Marchese.
NAYS
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Ron Johnson, Klees, Leadston, Parker, Tilson.
The Chair: The motion is defeated.
We are now dealing with section 23, as unamended. Shall that section pass? All those in favour? Carried.
We are proceeding to section 24, page 118. Mrs Boyd will be presenting an amendment to section 24.
Mrs Boyd: No, Mr Chair, we agreed yesterday that these amendments around the attaining of 16 years would be automatically withdrawn, since the main motion was withdrawn.
The Chair: Shall section 24, as unamended, pass? All those in favour? Agreed.
Moving on, shall section 25 pass? Carried.
Shall section 26 pass? Agreed.
We are now dealing with a new section, section 26.1.
Mrs Boyd: I move that the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following section:
"Periodic review
"26.1 A health practitioner who is administering treatment to a person with the consent of another person shall periodically review whether treatment may be provided in a less restrictive or less intrusive manner."
That simply is a review function to ensure; I think we all have agreed in the discussions we've had here that part of the purpose of this act is to ensure that there is the least intrusive kind of treatment possible. We had some folks come in who said, for example, that if a substitute decision-maker had caused them to be admitted to a facility and their situation was such that they could return home, they would want to have some opportunity to have that treatment decision reviewed.
There are other situations, for example, where developmentally disabled people might for a time need to be institutionalized or for a time have a treatment, particularly a treatment now allowed by this government, and it might be wise to review whether or not the decision made at one point was made in others. This is simply, I would think, good medical practice, that you would constantly be looking for the least intrusive kind of treatment, but it's put in here because other people are making decisions on people's behalf. I think it's important for us to be looking at that, particularly if we're talking about incarceration in some form of institution.
Mrs Johns: The government believes that with this amendment we're trying to legislate the professional standards of the health practitioners and we're certainly opposed to that. We believe that the colleges and their representative and regulative bodies will empower them and make sure that that happens, that their standards are maintained.
Mrs Caplan: We agree that this would be an intrusion into clinical practice and that the state should not intrude in clinical practice and therefore we will be voting against this amendment.
The Chair: Shall the amendment pass?
Mr Marchese: Recorded vote.
Ayes
Boyd, Marchese.
Nays
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Ron Johnson, Klees, Leadston, Parker, Tilson.
The Chair: That's defeated. We are now proceeding to new section 26.2.
Mrs Boyd: I move that the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following section:
"Hydration and nutrition
"26.2 A health practitioner who is administering treatment to a person shall ensure that the person receives adequate nutrition and hydration unless a member of the College of Physicians and Surgeons of Ontario certifies in writing that, in his or her opinion, the person is within 24 hours of death."
We've struggled with this whole issue around nutrition and hydration and heard very strong concerns expressed by physicians, by vulnerable people, by advocacy organizations about the issue of nutrition and hydration. While I have some concern that we may not have the optimum amendment here, I do think, given what we've heard, we should be putting some form of protection for people in the act to ensure that, at very least, they are offered food.
Several of those who came before us, the Alliance for Life Ontario, the Right to Life Association, expressed real concern that of course if food and hydration are withdrawn, people die. They don't necessarily die of their disease, they may die of starvation. It has been a well-known fact that as people near the end of their lives the decision may be made without their consent that they no longer require food, and I think that's a real problem.
I don't know whether 24 hours is the appropriate length of time and I don't know whether this wording is exactly what we wanted, but I think it is incumbent upon us to deal with the very real concerns that were brought forward to us around the issue of nutrition and hydration. I hope we can come to some conclusion around protections. We did certainly hear from a number of groups their concern that when they are incapable this decision may be taken on their behalf and is inappropriate.
The Chair: Thank you, Mrs Boyd. If it were passed, I assume it should be 26.1 rather than 26.2.
Mrs Boyd: We just wanted to add it, I believe.
The Chair: Your last one didn't go.
Mrs Boyd: Oh, that's right. I appreciate that.
Mrs Caplan: I think if there has been an amendment so far that defines how important this legislation is it's probably this amendment. These are the kinds of issues that this legislation contemplates dealing with. So the question becomes, how do you best deal with them? Our view is that the state should intervene in these decisions in the least possible way.
I am satisfied that there are ethics committees in all hospitals now that deal with these issues where there are no clear advance directives. The legislation does contemplate the notion of both best interests and best wishes, and I think it would be wrong for us to be as specific as this amendment is in statute because we would be doing two things. We would be interfering with the clinical judgements and we would be imposing a value that may be inconsistent not with individual wishes and beliefs but with the clinical judgements that go along with making those decisions. My argument really is that physicians do not make these decisions independently. In hospitals they make them on the advice of ethics committees which struggle with these issues all the time.
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It's in that spirit that we're not going to support this amendment. I understand the intent, I appreciate the intent, but just as Mrs Boyd said, "I'm not sure if it's 24 hours or what the wording should be," I don't think the state government can ever be in a position to write that into statute. It is much better left in the hands of the ethics committees which deal with the notion of best-interest wishes and the evolving technologies that are now allowing things to happen to people at the end stage of life that we have never contemplated before, and likely that will continue to evolve.
I think it is something that from time to time we want to talk about, but I don't think this amendment appropriately legislates anything near a consensus on this issue at this time. We will not be supporting it, but I wanted to speak a little bit about it because these are the difficult issues that this legislation contemplates dealing with.
Mrs Boyd: I am very little concerned about people who are ending their lives in hospital because I think Mrs Caplan is right. Most hospitals, particularly those that have entered into the delivery of palliative services, have dealt with these questions. They have very strong issues. I would suggest to you, Mr Chair, that does not mean there aren't lots of controversies in those hospitals around when palliation is the appropriate way and whether the withholding of food is part of palliation, and I think that continues to be a bit of an issue, even in those places. But those are not the places I'm worried about.
I'm worried about nursing homes, I'm worried about rest homes, I'm worried about homes for special care and I'm worried about all of our homes. More and more, people are ending their lives at home. They are under the care of a physician; very often, there's a nurse who comes in as part of home care who is a health practitioner who is there. They are the people who give the advice to families or to paid caregivers who are to follow their instructions. I can tell you from personal experience that the issue around the offering of food continues to be an issue in that setting when people are nearing death. It concerns me that there is no obligation at all in those circumstances for there to be clarity about the obligation to offer food.
We tried to put it in the personal care, personal routines of daily living, or whatever we ended up calling it, as something that is expected to be a routine, and there would be those who would say, "No health practitioner would ever make that comment." I can tell you from personal experience that is not true. It is not true that when people come close to death there are not those who will say, "It is not necessary to offer food any longer because this person is in an end stage."
It is true that physicians need to be able to say it may be dangerous for the patient to offer food. Certainly there are conditions where it would no longer be appropriate, and we heard someone, one of the physicians who came forward, talked about certain extreme situations where you know a person is far from death but other than an intubation or something, which has been refused by the patient, the taking of food by mouth would not be appropriate. We all can understand that and that should be a professional decision.
But I can tell you that it definitely happens, and it happens in cases to the most vulnerable, and it may happen with the agreement of substitute decision-makers who don't really understand, because they accept a professional opinion, what will be the reality of their loved one starving to death rather than dying of whatever the condition is that has affected them.
Mrs Johns: First of all, I just want to say, with the greatest respect, that Mrs Boyd has brought us to this topic a number of times throughout the process and I really appreciate the thought process that she's gone through and that she's made all of us think about. It's a very important issue and I have spent a little time talking to people and trying to ascertain what we could do to alleviate some of the circumstances she's talking about.
I actually had read some of this and had legal counsel read some of Life and Death from the Senate of Canada committee, and it seems it's a very difficult issue. So from my standpoint, as I come to this, I'm going to tell you what my problems are with the motion more than my problems with the thought process, because I certainly appreciate what you're saying, and I think we all need to wrap around this and I don't know how that happens.
But my problem with the motion at this particular point is, first of all, it contradicts what we've tried to do in consent, which is if a person has a wish that we follow through on the wish, so that we say, if they have a prior capable wish, we accept that person's wish no matter what.
Moreover, I'm worried about the professional standards issue that Mrs Caplan brought up. That was one of my major issues with this process, and I believe that we have to have some ability to have the colleges take hold of this, or the hospitals.
The third thing is that the legal counsel brought to my attention that health practitioners are well aware of the implications of the Criminal Code liability. The Criminal Code makes it an offence not to provide the necessities of life, and I think that's important for us to consider as we're looking at this proposal.
We won't be supporting it, not because we don't think it's an issue, but because we have come up with no way to legislate this, and, as you have said, 24 hours would be a big problem for me. I don't know what that magic number is even --
The Chair: Thank you, Mrs Johns.
Mr Marchese: I think what my colleagues raises are important points. Mrs Johns is agreeing that it's an important topic and she's read up on it and asked legal counsel to read up on it, but my colleague raises other questions. If someone states a wish that they want to starve near the end of their life, I suppose that's okay, right? But we're not dealing with that kind of circumstance obviously. My colleague also raises the question, what about nursing homes and other homes for special care where there are no ethics committees there or colleges of physicians there? How do you deal with that?
If we've got problems around the 24 hours, I understand that, but if you have concerns about this, would you argue that standing it down for a day wouldn't give you sufficient time to think about how else to reword this anyway so there's no point? Is that it?
Mrs Johns: We tried over the last week or two to come up with alternatives that would be acceptable, that wouldn't legislate, that would allow professional guidelines to take hold, and we haven't been able to come up with something, so I don't think the standing down would assist us.
The Chair: Shall the amendment carry?
Mr Marchese: Recorded vote.
Ayes
Boyd, Marchese.
Nays
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Ron Johnson, Klees, Parker, Tilson.
The Chair: That's defeated. We're moving on to section 27, schedule A, a motion by Mrs Boyd on page 121 of your proposed amendments.
Mrs Boyd: I move that subsection 27(6) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by inserting "in a written statement" after "asserts" in the third line.
I think it's important to be sure that we all know what we are talking about here. The section is called "Reliance on assertion."
"(6) If a person who gives or refuses consent to a treatment on an incapable person's behalf asserts that he or she,
"(a) is a person described in subsection 18(1) or clause 22(2)(a) or (b) or an attorney for personal care described in clause 30(2)(b);
"(b) meets the requirement of clause 18(2)(b) or (c); or
"(c) holds the opinions required under subsection 18(4),
"a health practitioner is entitled to rely on the accuracy of the assertion, unless it is not reasonable to do so in the circumstances."
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This is the section of the bill which protects from liability any health care professional or any substitute decision-maker as long as they are acting in accordance with this bill.
It seems to us that the issue of asserts is a very weak position. It seems to us that it is not at all unreasonable to have a person clearly sign a written statement indicating that they meet all those conditions. It ensures that the substitute decision-maker understands the impact of what they are doing, understands exactly what is required of them by this act. That can all be set out and it's simply a matter of the person reading it and signing it if they in fact meet all those conditions.
David Winninger in London, Ontario, in his presentation said:
"Further, a person may consent or refuse treatment under the new act if he or she is not present when the treatment is proposed but contacted in some other way. This is useful and practical. However, where a person purports to consent to or refuse treatment, knowing that a person of higher rank or equal rank exists, there should be a safeguard, such as a written statement, that the person with higher authority would not object and not merely `belief.'"
As the section is presently worded, pursuant to section 27(6), health practitioners are permitted to rely on assertions made voluntarily by anyone giving or refusing treatment on an incapable person's behalf. It seems to us that it would be very appropriate for the person in this circumstance to submit to a written statement that they meet the requirements.
The Chair: Is there anyone else who'd like to speak in favour of this amendment? If not, I'll put the question.
Mr Marchese: Recorded vote.
Ayes
Boyd, Marchese.
Nays
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Ron Johnson, Klees, Parker, Tilson.
The Chair: The amendment is defeated.
Shall section 27, as unamended, carry? All those in favour? Opposed? None? Carried.
Sections 28, 29 and 30 have no amendments, and with your permission, I shall ask you whether 28, 29 and 30 shall carry. Carried.
Section 31, there is an amendment by the opposition to 31(4) which is contained on 122.
Mrs Caplan: I move that paragraph 3 of subsection 31(4) of the Health Care Consent Act --
Interjection.
Mrs Johns: This is consequent.
Mrs Caplan: Oh, right. This has to be withdrawn.
The Chair: It is withdrawn?
Mrs Caplan: Right.
The Chair: We have to deal with section 31, as unamended, and section 32. Shall sections 31 and 32 carry? All those in favour? Carried.
Section 33, the third party has an amendment which is contained on page 123.
Mrs Boyd: This is a consequent amendment. We've already made the decision around 16 years of age. So I withdraw it.
The Chair: It's withdrawn. And 124?
Mrs Boyd: And 124, Mr Chair, so I believe that 33 and 34 are unamended.
The Chair: I take it we will have to move, shall section 33 and section 34 pass? Agreed.
We are now proceeding to section 35, and we have two amendments. The first is by Mrs Boyd.
Mrs Boyd: I move that subsections 35(1) and (2) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Application to determine compliance with s. 19
"(1) If consent to a treatment is given or refused on an incapable person's behalf by his or her substitute decision-maker, any person may apply to the board for a determination as to whether the substitute decision-maker complied with section 19.
"Parties
"(2) The parties to the application are:
"1. The applicant.
"2. The health practitioner who proposed the treatment.
"3. The incapable person.
"4. The substitute decision-maker.
"5. Any other person whom the board specifies."
The change here would mean that others other than the health practitioner could apply to the board, and that would mean that if in fact a friend -- and we've heard this concern from the government members, that people can apply to the board if in fact they think the wishes of the person are not being followed, but the issue is that only the health practitioner can apply to the board in section 35. We believe that anyone who believes that the person's wishes are not being followed ought to be able to do that. That would answer some of the concerns that we heard from people about what you do as an individual and you have no standing. You're not the health practitioner. You're not the substitute decision-maker. You have no standing. How can you make an application to protect that person? This would simply make it possible for any person to make that application.
The Chair: Is there any -- Mrs Caplan.
Mrs Caplan: If you're asking for anyone who'd like to speak in support of the motion --
The Chair: Anybody. I wasn't going to curtail it. I was trying to --
Mr Michael Brown: Expedite it.
The Chair: -- expedite it. Is that fair?
Mrs Caplan: Yes. We'll be supporting this, because we do think it is reasonable. Particularly with all the protections that have been taken out of the legislation, at least a friend or an advocate should be able to apply to the board, as well as the other parties, the practitioner in particular, if they feel the desires, wishes or the determination around the substitute decision-maker, decisions that they're making, are not in the best interests.
It's a protection. It's not a lot, frankly. I don't think you'll have very many situations where someone else will make an application to the board, but we think this is a reasonable amendment given the protections that have been removed from the legislation.
Mrs Johns: The government's going to be opposing this motion.
Mrs Boyd: What else is new?
Mrs Johns: The reason we're going to be opposing the motion is as follows: Anybody could go before the board. If a person is upset by how the substitute decision-maker is making his decisions, they can go before the board and ask to become the substitute decision-maker. There is an ability for people to become the substitute decision-maker if they truly believe that the substitute decision-maker is acting ineffectively.
What will happen in this particular case is that people could come forward and say, "We don't like what is happening," and anybody could apply. For example, in the case of Mrs Singer, what could happen is that someone could come and say, "I don't like the treatment that Mrs Singer is offering to her son," and they could take this forward to the board to be able to allow the board to evaluate this process.
Mrs Caplan: Could you show us the section that would allow someone to apply to the board to be named as substitute instead? Which section is that?
Mrs Johns: The one who wants to be a substitute decision-maker.
Mrs Caplan: No, where they're not satisfied, where there is a substitute who's acting and it's appropriate within the hierarchy where that can be challenged before the board. Where is that?
Mrs Johns: Under section 31. I'll give you legal counsel, because -- go ahead, 31(8).
Ms Perun: With respect to how do you get involved, obviously you realize we have the application for appointment of a representative. That's there already under section 31. So you can either apply to the board to become yourself appointed as a representative, or if you're not the representative, if someone else is the representative, any person can apply to the board under subsection 31(8) on page 82 of the legislation to terminate an appointment that has been made and therefore get yourself appointed instead. So that is available.
Mrs Caplan: In that case, we will not be supporting the amendment.
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Mrs Boyd: This only allows someone to apply to be the substitute decision-maker. A person may well believe that the substitute decision-maker is not following the wishes of the individual without wanting to substitute themselves for the substitute decision-maker.
The issue here is protection of the vulnerable person, and protection of that vulnerable person's right to have his or her wishes, as expressed, followed by a substitute decision-maker. It is not about enjoining a fight where someone else wants to take over as the decision-maker. It's a situation of protection of an individual whose wishes are not being followed by the substitute decision-maker who has been accepted.
I do not think we should force someone who believes that someone's wishes are being contravened, that the only recourse they can do is to take over that decision-making themselves. That's hardly appropriate. You don't ask that of the health care professional. You've got the health professional here being able to make that application. Why is the health professional the only one who can express that concern on the part of somebody without having to become the substitute decision-maker? This is absurd.
Mr Michael Brown: I'm quite satisfied that making an application to terminate someone as a substitute decision-maker is an appropriate protection for people. It seems to me that if you have a substitute decision-maker who is not respecting the wishes of the individual, then they should be terminated, and I think that is exactly the thing that should happen. If the person making the application does not wish to be the substitute decision-maker themselves, I don't think the legislation requires that, but another one could be --
Interjection: No.
Mr Michael Brown: It says terminate, I think, in the language of the bill. So I think it's totally appropriate. We also have to understand that the health practitioner him- or herself can approach the board and also seek the remedy.
The Chair: Thank you, Mr Brown. Are there no further comments? Did you want it recorded?
Mr Marchese: Absolutely.
Ayes
Boyd, Marchese.
Nays
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Ron Johnson, Klees, Leadston, Parker, Tilson.
The Chair: The motion is defeated. We are now proceeding to subsections 35(6) and (7), a motion by Mrs Johns. Please proceed.
Mrs Johns: I'm on page 85 of the bill, page 126 of the motions, schedule A to the bill, subsections 35(6) and (7) of the Health Care Consent Act, 1995.
I move that subsections 35(6) and (7) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Deemed not authorized
"(6) If the substitute decision-maker does not comply with the board's directions within the time specified by the board, he or she shall be deemed not to meet the requirements of subsection 18(2).
"PGT
"(7) If the substitute decision-maker who is given directions is the public guardian and trustee, he or she is required to comply with the directions, and subsection (6) does not apply to him or her."
This a minor wording change and a link is made to the section for determining who is entitled to make a substitute decision.
Mrs Caplan: Agreed.
The Chair: Agreed? The motion is carried.
Shall section 35, as amended, carry? Carried.
New section 35.1 to schedule A, Mrs Boyd.
Mrs Caplan: I'm going to ask you to rule. The purpose of this was to actually give effect to what was earlier refused by the government. The intention here was to set up who could apply to the board for the purpose of faradic stimulation. I'm hoping that the government has changed its mind, because this could stand alone. All it does is set up the mechanism whereby a health practitioner or a person's substitute decision-maker can apply to the board for permission to treat the person with electric shock as aversive conditioning, and it lays out the powers of the board. Unfortunately, the other part was refused, so I'd like to know whether the government's had a change of heart.
The Chair: I'm sorry. You're referring, I thought, Mrs Caplan, to the application to a court.
Mrs Caplan: No. You see, the difficulty that I have is this: The original amendment that we placed said that you had to apply to the Consent and Capacity Board for approval to use faradaic stimulation as aversive conditioning, except a Comsoc facility. The way this reads, it would require everyone to make application to the board, and that was not the original intent. While I hate to withdraw this, I'm going to have to. Unfortunately, because the government hasn't accepted the first amendment, this one doesn't stand alone because the intent would then require everyone to go, and that wasn't the intent. However, since the government didn't accept, and we voted against the application to the court, I would like a vote on this. If I could read it in so we could, for the record, have a vote --
The Chair: On the advice of legislative counsel, they would find that this is redundant in view of the loss of the formal amendment.
Mrs Caplan: I thought you might. I've been waiting to see if that was going to be your ruling. I was hoping that you might let a vote on it because -- and this is no joking matter -- the situation as it stands right now is that it's virtually wide open, subject to guidelines from two colleges, for the use of a very controversial procedure that, up until this point, has been either tightly controlled or banned in Ontario. While we all agree that the ban went too far, I'm concerned that Bill 19 goes too far in the other direction. We've been trying to put something in that would give some accountability and some requirement for permission outside of a Comsoc facility. So it's with reluctance that I accept your ruling.
The Chair: Thank you. I appreciate your cooperation. I do have the reputation of somehow being too accommodating, so it's nice to make my first ruling against anyone at this table.
Mrs Boyd: Somebody else has been saying that.
The Chair: We'll now move to section 36. Shall section 36 pass? Carried.
Section 37. We first have a government amendment.
Mrs Johns: I'm on page 128, and that would be page 86 of the bill.
I move that section 37 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following definition:
"`crisis' means a crisis relating to the condition or circumstances of the person who is to be admitted to the care facility."
Agreed?
Mrs Caplan: Agreed.
Mr Marchese: Agreed, yes, but if you want to give the explanation for --
Mrs Johns: I think that everybody knows that one of the deputants came forward --
Interjections.
The Chair: We're moving on to the next page, 129.
Mrs Boyd: As a result of the realization of the government that in fact "crisis" could have referred to a crisis of the health facility rather than the individual, we are delighted to withdraw this, and in fact think your wording is better.
The Chair: Let me deal with section 37, as amended. Shall it carry? Carried.
We are now dealing with section 38, and you're on page 130.
Mrs Johns: I move that section 38 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by inserting "or refused" after "given" in the fifth line.
It makes it clear that a substitute decision-maker may give or refuse consent to admission to a health care facility. We had a deputant speak to that issue and we just clarified it.
The Chair: Agreed? Agreed.
Mrs Johns: Are we on to 131 now?
The Chair: You're on to 131.
Mrs Johns: I move that section 38 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following subsection:
"Opinion of board or court governs
"(2) If a person who is found by an evaluator to be incapable with respect to his or her admission to a care facility is found to be capable with respect to the admission by the board on an application for review of the evaluator's finding, or by a court on an appeal of the board's decision, subsection (1) does not apply."
Basically, this clarifies that a board or court decision that a person is capable prevails over the health practitioner's view.
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Interjection.
Mrs Caplan: Look, if you want take the time. I don't want you to complain at the other end that we don't get through.
Mr Marchese: Just as a point, usually explanations are not very long, and even though we agree, it's important for those watching to hear the explanation because it's not always entirely understandable. So I would like that explanation, if you don't mind.
The Chair: You're entitled to that. Now I'm confused. That was the addition of (2) to section 38? There is no (1), though, in my book. Am I in the wrong book?
Interjection: That was the other amendment.
The Chair: Oh, sorry. Shall section 38, as amended, pass? Agreed.
Shall section 39 pass? Carried.
A new section, 39.1.
Mrs Boyd: I move that the Health Care Consent Act, 1995, as set out in schedule A of the bill, be amended by adding the following section:
"Notice of finding
"39.1 If an evaluator finds that a person is incapable with respect to admission to a care facility, the evaluator shall ensure that the person is advised of the finding of incapacity."
Mrs Caplan: Actually, we're going to support this one. I know that we've had a lot of discussions about rights advice. This doesn't deal with rights advice; this is another way of just having a very simple obligation for the purpose of admission. I think putting someone into a long-term-care facility is a significant lifestyle change. In many cases they may not understand and fully appreciate, but they do have the right to appeal the finding. We know that there have been abuses in the past where the family can sometimes find a practitioner who will make the finding of incapacity to allow the relative to be put into a facility against their wishes. If they're not told that they do have that finding, they will not then know of their right to appeal. So we're going to support this one and I hope the government will. If you're not going to do a broad rights advice, you're not going to have an obligation to inform broadly, this is narrow and I think it's reasonable.
Mrs Johns: From the information I have seen, what we want to do with evaluators is we want to work at providing information and rights advice through the long-term-care policy. So what we talked about previously yesterday with respect to long-term policy and how we could implement it through PCSs is part of what we're going to be talking about when we talk about this today.
As you remember, yesterday I gave everyone the policy for long-term care, and it suggests in it, on the second page, "The guidelines will describe the role of an evaluator in situations where part IV is applied." We have to change that to parts III and IV. "The guidelines will also explain what the evaluator's responsibilities are regarding communicating a finding of incapacity to a recipient of a personal assistance service and admission to a long-term-care facility and providing written rights information."
From my standpoint, this is different than in the previous section, where we had health care practitioners, where we had a number of different colleges and we were able to deal with it through the colleges and the guidelines. This is very much different here, because we at the ministry have some control over these as a result of our long-term-care policies. We believe that policy will give us consistent application with respect to talking about incapacity and the rights application. So we believe there's a better way to do it than is being presented here in this amendment.
The Chair: Does the government oppose it?
Mrs Johns: Yes.
Mrs Caplan: Actually, if Mrs Boyd were to amend her legislation or accept a friendly amendment that would state "and the procedure to be defined by regulation," that would actually implement what you intend to do and you would just have it in statute that you're going to do it. That would give people some comfort. So since it is your intent to do it by guideline, it would be nice --
Mrs Boyd: I accept that friendly amendment.
Mrs Johns: Can I let legal counsel talk to that, to let us know what the pros and cons would be of that?
The Vice-Chair: Excuse me. If we are going to accept it as a friendly amendment, my understanding is that you have to withdraw and reword the motion.
Mr Marchese: Re-read it.
The Vice-Chair: Re-read it, that's right.
Mrs Boyd: Okay. Then I move that the Health Care Consent Act, 1995, as set out in schedule A of the bill, be amended by adding the following section:
"Notice of finding
"39.1 If an evaluator finds that a person is incapable with respect to admission to a care facility, the evaluator shall ensure that the person is advised of the finding of incapacity and the procedure will be set down by regulation under the Long-Term Care Act."
Ms Perun: I just wanted to point out that in Bill 19, with respect to part IV, the amendments to other acts, the government is proposing amendments to all three long-term-care statutes: the Charitable Institutions Act, the Nursing Homes Act and the Homes for the Aged and Rest Homes Act.
If I might take you to the Charitable Institutions Act, page 36, there is a reg-making power that has been added, "prescribing and governing the obligations of placement coordinators and others in relation to ensuring that persons seeking admission to an approved charitable home for the aged" -- in this case -- "are provided with information about their rights and assistance in exercising their rights, including prescribing the information or assistance that must be given" etc. So the regulation-making power is already there. That has been added to the three long-term -- care statutes to which part III applies.
Mrs Boyd: Our issue is not that the regulation-making power is there under those acts. Our issue is that there be an obligation for evaluators to tell a person that they have been found incapable, and then the way in which they do that can be regulated under those acts. We're quite happy for that to happen, but we believe that an obligation must be there. Somewhere here, folks, we have to realize that people have a right to know that they have been found incapable.
Certainly, admission to a long-term-care facility -- I must tell you, security of the person and all of that under the Charter of Rights comes into effect as much in terms of incarceration, if you like, in a long-term-care facility as it would in a mental hospital. Let's get real here. If people are incapable and they're going to be forced to leave their homes and move into a long-term-care facility by a decision of someone else, they have a right to know that they've been found incapable. That's all we're asking. You can do it however you decide to prescribe it under the various long-term-care acts, that's fine, but there should be an obligation that these people know that they've been found incapable.
Mrs Caplan: I want to just restate the point, and I'm grateful that you've pointed out to us that the reg power is there under the Long-Term Care Act. I'm also grateful that you've told us that it is your intention to do it. What's important is that you have the statutory obligation. That protects the person, because regulations and guidelines can always be changed, and they're changed --
Mrs Boyd: Policy never protected anybody.
Mrs Caplan: Policy is very different than statute, and on this issue, since you intend to do it anyway, I don't think that an obligation and including it in the statute will fetter you in any way. It's just putting in the statute what you tell us you're going to do. So it's a good-faith test and I think it's important for people to know that that is a protection that is in the statute, that the intention is clear and that it be here in the Health Care Consent Act, which then is referenced in the long-term-care legislation, and that's very appropriate.
If there's a different wording that you would like, we would certainly be happy to let you word it in whatever way you want, because we wouldn't want you to go through the exercise of double regs, but I think the wording that we have would accommodate what you have in the legislation. I can't think of any reason why you would object to putting this in the statute, since you plan on doing it and you have it, and I have the paper that you gave us yesterday. So I'm hoping that you'll support this amendment, because it's necessary. It's not something that should be left entirely to policy.
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Mr Marchese: This is the simple point. A number of people told us that they want to know; they want to be advised of the finding of incapacity. That's the principle. Do you agree with that or not? If you agree, why would we disagree with putting that in statute? That's really the significant point. How you do it, as the other colleagues have said, is entirely up to you. But once you have the principle in place, then that takes care of our concern around this and the concerns that have been expressed by the different people who have come in front of this committee.
The Vice-Chair: All in favour of the motion?
Mr Marchese: A recorded vote, please, Mr Chair.
Ayes
Boyd, Caplan, Grandmaître, Marchese.
NAYS
Johns, Klees, Leadston, Parker, Tilson.
The Vice-Chair: The amendment is defeated. Moving on to a new section, schedule A. I believe you'll find that on page 133, and it would be the New Democrats.
Mrs Boyd: Mr Chair, this is withdrawn in light of the intransigence of the government around providing rights advice to incapable people.
Mr Marchese: It's getting worse, David.
Mrs Boyd: As is 134.
The Vice-Chair: As is the alternate. Moving to section 40, schedule A; again Mrs Boyd.
Mrs Boyd: I move that paragraphs 1 and 2 of subsection 40(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"1. If the person knows of a wish applicable to the circumstances that the incapable person expressed while capable, the person shall give or refuse" -- I'm sorry, Mr Chair, this is an age issue and it is withdrawn because we've already made that determination. I beg your pardon.
The Vice-Chair: Shall section 40 carry, then? Carried.
Sections 41, 42, and 43? Carried.
Section 44, schedule A, a government amendment.
Mrs Johns: We're on page 136 and we're talking about section 44, which is on page 88 of the bill.
I move that clause 44(1)(b) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"(b) before the admission takes place, the person responsible for authorizing admissions to the care facility is informed that the person who was found to be incapable intends to apply, or has applied, to the board for the review of the finding; and,"
"...or has applied" is the new section to the act. We've talked about that before; that they are going to be going forward to the board is important recognition that we should not go forward.
The Vice-Chair: Agreed? Carried.
Another government amendment.
Mrs Johns: Page 137, page 88 of the bill.
I move that clause 44(2)(b) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"(b) before the admission takes place, the person responsible for authorizing admissions to the care facility is informed that,
"(i) the incapable person intends to apply, or has applied, to the board for appointment of a representative to give or refuse consent to the admission on his or her behalf, or
"(ii) another person intends to apply, or has applied, to the board to be appointed as the representative of the incapable person to give or refuse consent to the admission on his or her behalf; and,"
This is the same explanation again.
Mrs Caplan: Agreed.
The Vice-Chair: Mrs Johns, a third amendment.
Mrs Johns: Page 138.
I move that subsection 44(3) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "shall not authorize the person's admission, and shall take responsible steps to ensure that the person's admission is not authorized" in the third, fourth, fifth and sixth lines and substituting "shall take reasonable steps to ensure that the person's admission is not authorized and that the person is not admitted."
This is a fine distinction in clarification. If there's any comment on that, I'll discuss it further.
Mrs Caplan: The only comment I have is on the fourth line down. I think you meant "reasonable," as opposed to "responsible."
Mrs Johns: Sorry, thank you very much.
Mrs Caplan: In that case, approved.
Mrs Johns: Carried.
Page 139.
I move that subsection 44(5) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Admission for definite stay
"(5) This section does not apply to a person's admission, or the authorization of a person's admission, to a care facility for a stay of a definite number of days not exceeding 90."
A couple of the deputants came forward and suggested that there should be a time frame associated with this and we picked 90 days.
The Vice-Chair: Carried.
The final amendment to this section is a Liberal amendment.
Mrs Caplan: It's a consequent amendment, so we will withdraw.
The Vice-Chair: Shall section 44, as amended, carry? Carried.
Sections 45 through 48? Carried.
Section 49, schedule A, Liberal amendment.
Mrs Caplan: No, page 141. I think you have another amendment, a government amendment; 140 was withdrawn.
Mrs Johns: I don't have the amendment we're talking about; 141 is my amendment.
Mrs Caplan: That's what he called for. He called for me, but I said it's yours.
Mr Tilson: Page 140, the Liberal amendment, is withdrawn.
The Vice-Chair: The amendment on page 140 was not moved. So we're on 141 now.
Mrs Johns: We're on page 92 of the bill.
I move that subsection 49(5) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Appointment
"(5) In an appointment under this section, the board may authorize the representative to give or refuse consent on the incapable person's behalf,
"(a) to his or her admission to the care facility; or
"(b) to his or her admission to any care facility, or to any of several care facilities specified by the board, whenever an evaluator finds that the person is incapable with respect to the admission."
The main clarification is that the future admission decision can only be made for the person by their representative if an evaluator finds that the person is incapable at a future time.
The Vice-Chair: Discussion? Carried.
Section 49, as amended? Carried.
Section 50, schedule A, an NDP amendment.
Mrs Boyd: This is a consequent amendment on age and is withdrawn, Mr Chair; similarly the next one, the one that is proposed 51, is a consequent amendment.
The Vice-Chair: Shall sections 50 and 51 carry? Carried.
Section 52, schedule A, an NDP amendment.
Mrs Boyd: I move that subsections 52(1) and (2) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Application to determine compliance with section 40
"(1) If consent to admission to a care facility is given or refused on an incapable person's behalf by his or her substitute decision-maker, any person may apply to the board for a determination as to whether the substitute decision-maker complied with section 40.
"Parties
"(2) The parties to the application are:
"1. The applicant.
"2. The person responsible for authorizing admissions to the care facility.
"3. The incapable person.
"4. The substitute decision-maker.
"5. Any other person whom the board specifies."
This is a similar amendment to the one that the government refused to accept in terms of the health care practitioner in another setting. We believe that it ought to be possible for any person to make this application and we do not accept the view of the government that determination of it is sufficient.
The Vice-Chair: Discussion? All those in favour?
Mr Marchese: A recorded vote again.
Ayes
Boyd, Marchese.
NAYS
Caplan, Doyle, Grandmaître, Johns, Klees, Leadston, Parker, Tilson.
The Vice-Chair: That amendment is defeated. Moving to the government amendment, section 52.
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Mrs Johns: I move that subsections 52(6) and (7) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Deemed not authorized
"(6) If the substitute decision-maker does not comply with the board's directions within the time specified by the board, he or she shall be deemed not to meet the requirements of subsection 18(2), as it applies for the purpose of section 39.
"PGT
"(7) If the substitute decision-maker who is given directions is the public guardian and trustee, he or she is required to comply with the directions, and subsection (6) does not apply to him or her."
We have discussed this previously.
The Vice-Chair: Those in favour? Carried.
Section 52, schedule A, as amended? Carried.
Section 53, schedule A, government amendment.
Mrs Johns: Amendment 146, on page 94.
I move that section 53 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Application of part
"53. This part applies to personal assistance services."
We're going to have a lot of this through the next time as we've changed "plan" to "services."
Mrs Caplan: Is there any way, legislative counsel, that we can lump them all together and just let that go? The phrase "personal assistance services" is consistent.
Ms Gottheil: No, there was no way to do a global motion, because sometimes it's singular, sometimes it's plural and sometimes additional or different changes had to be made to the section.
Mrs Caplan: Does she have to read it in every time?
Interjection: Go ahead, Mrs Johns.
Mrs Caplan: Okay. Keep going.
Mrs Johns: Thank you for trying. I appreciate it.
Mrs Johns: Page 147.
The Vice-Chair: Excuse me. Section 53 as amended, then? Carried.
Section 54, schedule A, government amendment.
Mrs Johns: I move that the definition of "substitute decision-maker" in section 54 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"`substitute decision-maker' means a person who is authorized under section 56 to make a decision concerning a personal assistance service on behalf of a recipient who is incapable with respect to the service."
Mrs Caplan: That's clear.
Mrs Johns: "Recipient" and "plan" are changed.
The Vice-Chair: Carried. Section 54, as amended? Carried.
Section 55.
Mrs Johns: I move that section 55 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Decision on incapable recipient's behalf
"55(1) If a recipient is found by an evaluator to be incapable with respect to a personal assistance service, a decision concerning the service may be made on the recipient's behalf by his or her substitute decision-maker in accordance with this act.
"Opinion of board or court governs
"(2) If a recipient who is found by an evaluator to be incapable with respect to a personal assistance service is found to be capable with respect to the service by the board on an application for review of the evaluator's finding, or by a court on an appeal of the board's decision, subsection (1) does not apply."
Mrs Caplan: Agreed.
The Vice-Chair: Carried. Section 55, as amended, carried.
Section 56, schedule A.
Mrs Johns: I'm on page 149.
I move that section 56 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Determining who may make decision
"56(1) For the purpose of determining who is authorized to make a decision concerning a personal assistance service on behalf of a recipient who is incapable with respect to the service,
"(a) section 18, except subsections 18(5) and (6), applies with necessary modifications;
"(b) if no person described in subsection 18(1) meets the requirements of subsection 18(2), the public guardian and trustee may make the decision concerning the personal assistance service; and
"(c) if two or more persons who are described in the same paragraph of subsection 18(1) and who meet the requirements of subsection 18(2) disagree about the decision to be made concerning the personal assistance service, and if their claims rank ahead of all others, the public guardian and trustee may make the decision in their stead."
The Vice-Chair: All those in favour? Carried. Section 56, as amended? Carried.
A new section to schedule A, section 56.1, an NDP amendment. Mrs Boyd.
Mrs Boyd: I move that the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following section:
"Notice of finding
"56.1. If an evaluator finds that a person is incapable with respect to his or her personal assistance plan, the evaluator shall ensure that the person is advised of the finding of incapacity."
This again is the issue around ensuring that people are advised when they have been found incapable. We intend to continue to make these motions because we keep hoping that the government will understand how important this issue is.
Mrs Caplan: I'm anticipating what Mrs Johns is going to say. They intend to do this by guideline. She's nodding her head. If I thought it would help, I would add a friendly amendment that would allow it to be done by guideline. Since she's not going to accept it anyway, why bother wasting the time? But I want to go on the record that we're supporting this amendment even though we're not going to bother amending it because we just think that if you're going to do it, you should make it clear in the statute. Everyone has asked for clarity. Inquest after inquest has asked for clarity. If you're going to do it by policy and you're going to do it by regulation, it is good law and good practice and good public policy to be clear about it and put it up front in the statute.
I haven't heard a good reason from you as to why on these, where you're going to do it and you're going to do it by guideline, that you wouldn't have it clear in the statute of that intention. I'd ask that perhaps you try and give us that explanation. I don't want to waste your time, but I think this is important that we find out what your aversion is to being clear about that, since it is your intention to do that and you do have the power and you do have the control and long-term-care legislation is yours and you're not dealing now with the self-regulating discretion of the colleges.
I don't understand why you didn't put the last one in, and I don't understand why it's the decision of your government to leave the act silent.
Mr Marchese: Just to repeat again, this is, in our view, a basic, fundamental right. People are entitled to know. Deputation after deputation told us the same thing. We're not alone in saying this. They've heard it; we've heard it. We're saying if you're going to do it in the guidelines, this informs the people drafting the guidelines as to what it should do and say. If you don't have that, we don't know what those guidelines will do and say. If you say that's what it's going to do, you should not have any aversion to stating it in the act. It's a basic, fundamental right. It should be seen in the act and people want to see that.
Mr Marchese: Recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Marchese.
Nays
Doyle, Johns, Klees, Leadston, Parker, Tilson.
The Vice-Chair: That motion fails.
Moving on to a new section, schedule A, section 56.2, another NDP amendment.
Mrs Boyd: This is withdrawn, as is the next one, in view of the government's intransigence about ensuring that people are informed about their rights.
Mr Marchese: That's right, intransigence. Entrenched.
Mrs Caplan: I haven't made any comment about you throwing in the towel or giving up or any of those things that you said about us. I won't make those comments. Hansard, don't record it.
The Vice-Chair: Section 57, schedule A. Ms Johns, government amendment.
Mrs Johns: This is a long one so people can have a copy while I'm doing this. This is again about personal assistance and recipients.
I move that section 57 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Principles for making decision
"57(1) A person who makes a decision on an incapable recipient's behalf concerning a personal assistance service shall do so in accordance with the following principles:
"1. If the person knows of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, the person shall make the decision in accordance with the wish.
"2. If the person does not know of a wish applicable to the circumstances that the recipient expressed while capable and after attaining 16 years of age, or if it is impossible to comply with the wish, the person shall act in the recipient's best interests.
"Best interests
"(2) In deciding what the recipient's best interests are, the person shall take into consideration,
"(a) the values and beliefs that the person knows the recipient held when capable and believes he or she would still act on if capable;
"(b) any wishes expressed by the recipient with respect to the personal assistance service that are not required to be followed under paragraph 1 of subsection (1); and
"(c) the following factors:
"1. Whether the personal assistance service is likely to,
"(i) improve the quality of the recipient's life,
"(ii) prevent the quality of the recipient's life from deteriorating, or
"(iii) reduce the extent to which, or the rate at which, the quality of the recipient's life is likely to deteriorate.
"2. Whether the quality of the recipient's life is likely to improve, remain the same or deteriorate without the personal assistance service.
"3. Whether the benefit the recipient is expected to obtain from the personal assistance service outweighs the risk of harm to him or her.
"4. Whether a less restrictive or less intrusive personal assistance service would be as beneficial as the personal assistance service that is the subject of the decision.
"5. Whether the personal assistance service fosters the recipient's independence.
"Confinement, monitoring devices, restraint
"(3) Subject to paragraph 1 of subsection (1), the person shall not give consent on the recipient's behalf to the use of confinement, monitoring devices, or means of restraint unless the practice is essential to prevent serious bodily harm to the recipient or to others or allows the recipient greater freedom or enjoyment.
"Participation
"(4) The person shall encourage the recipient to participate, to the best of his or her ability, in the person's decision concerning the personal assistance service."
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The Vice-Chair: Discussion? All those in favour?
Mrs Boyd: Could I just ask a question? What is the definition of "unless it is impossible to" --
Mrs Johns: Oh, paragraph 57(1)2? I'll let legal counsel talk to it after, but we talked about it a fair amount as we went through the process. If someone puts in their living will, for example, something about them wanting this to happen and that opportunity isn't allowed to them because their disease is different, for example, then we wouldn't be allowed to do that. So, in this case, the personal assistance service wouldn't be available to them.
Ms Perun: The main reason why this language is here in this part, but it also is in part III and part II, is to make it consistent with the provisions in the Substitute Decisions Act, which provide that a guardian and an attorney under power of attorney must comply with wishes unless it's impossible to comply with the wishes. So there was a dual standard for guardians and attorneys under the Consent to Treatment Act vis-à-vis the Substitute Decisions Act, so basically this provision makes the standard the same in both acts.
Mrs Caplan: Can you think of an example of where it might be impossible in that situation to comply with an individual's values or beliefs? The only thing I could think of was if they had stated their desire for a cure and there was no cure.
Mrs Boyd: It's a service, not --
Mrs Caplan: I'm saying, you know, this is a service. Unless this would reflect the fact that they want something that they can't afford. Is that what it's about?
Mrs Johns: No, no. Let me get the long-term care to discuss that issue because that's certainly not what I've heard, although I asked about it in treatment versus personal assistance service --
Mrs Boyd: Treatment I understand.
Mrs Caplan: That's right.
Mrs Boyd: If somebody said, "I don't want to be catheterized," and you're in a situation where you have to do that, I really understand that. Treatment's not a problem. On this one, and since it's been raised, Helen, let me tell you where I think the issue is. That's what I want an understanding of, and that is around -- not services that are provided in the facility that are not paid for, but there may be services that are over and additional to where someone in an advance directive has said, "I'm rich and I can afford Cadillac service and I'm willing to pay for that." Those wishes are clear. The substitute, can they say no and override that?
The only time I would think they could be able to under this is if there's no more money in the bank. If the person is no longer rich and they've used all their money, therefore it's impossible to comply with that wish, but if there's any other circumstance where they could not comply with that wish, I'd like to know an example of what you mean.
Mrs Johns: Let me just try and get some clarification here and then we'll decide what we want to do with it.
Ms Anna Burwash: My name is Anna Burwash. I'm in the long-term-care policy branch.
I think some issues may come up in a long-term-care facility. We would be assuming that if a person was in a long-term-care facility that that decision had been made looking at a number of factors, and of course as you've indicated, money might be one of them. But there may be something related to either how many times per day the service, a week or whatever, that the service is provided, or something else that simply cannot be accommodated within the setting that the person is in.
Mrs Johns: Give them the example of food.
Ms Burwash: It might something to do with food, for example. They still are going to get fed, but there may be some very specific wish that simply cannot be accommodated in the kind of setting that the person is in.
Mrs Johns: Can I give you an example, one I can think of for this? For example, in Exeter we don't have a Jewish home and so we wouldn't be providing kosher food, would be one example, and so a person couldn't get kosher food in our long-term-care facility. Now, I don't know if that's an example.
Mrs Caplan: That is a good example.
The Vice-Chair: Ms Caplan, I'm sorry. Ms Boyd was next on the list.
Mrs Boyd: If that's the example, then we're a little bit concerned, because probably the person shouldn't have been admitted to that facility under those circumstances. They would know very well when they were expressing their wishes that they lived in a place where that was not possible so they likely wouldn't express it in their wishes under those circumstances. That is exactly what we're worried about, and we're worried about people who have, for example, said, "I wish to be at home." They have enough money to be at home, but somebody may decide that the services that they want at home are impossible to comply with.
For example, they might say, "I want to stay at home but I want the opportunity to enjoy a walk in my wheelchair every day." Now, it may be that staying at home, normally they'd be on a second floor and they couldn't do that, and then it would be surely easy for a substitute decision-maker to say, "I can't comply." Whereas what you might want to say is, "I can't comply with this on the second floor but maybe they should be on the first floor so that in fact we can comply with that service."
Those are the kinds of things that we worry about. Because who decides that it's impossible to comply, and what does that mean? It may have a real effect in terms of the wishes that people have. It may in fact be the reason that they made certain wishes known in the first place. That's fairly important.
Mrs Caplan: If I can, Mr Chairman? I don't want to belabour the point, but I think that it is interesting to think about, or try and contemplate, the kinds of things that this would allow to be overruled. I think it's reasonable for someone to say, as a value or a wish, that, "I'd like to be able to go outside every day unless the weather is bad and it's raining" -- that's reasonable -- "but if the weather is nice I'd like to be taken outside every day." If the care plan in the long-term-care facility can value and accommodate that wish, but if there's a reduction in staff or there are no volunteers but it was part of the understanding when the person went into that home that that was part of the agreement for their personal services that they would be taken out into the fresh air every day when the weather was nice, can this overrule that simply because you're short-staffed that day and it's not possible to get the person outside?
Ms Burwash: I would view going outside every day as a pretty reasonable request.
Mrs Caplan: So would I.
Mrs Boyd: So would I.
Ms Burwash: I don't see that that's the kind of thing that a person would be able to make a credible case that that was impossible.
Mrs Caplan: The question is, who'd be the arbiter of what's impossible? I agree with you. That's why I used that very simple example, "If I'm able to, take me" --
Mrs Boyd: It happens all the time.
Mrs Caplan: Oh, yes. These are the sorts of issues that all we want to know here is, how are you going to give force to this amendment? We like all of it, except for, who's going to determine if it's impossible?
The Vice-Chair: Excuse, Ms Caplan. We'll give Ms Johns an opportunity to respond now.
Mrs Johns: I just wanted to give long-term-care another alternative so we could hear it, and then we'll bring up somebody else and we'll see what we can come up with. I think this is an interesting argument. It certainly isn't our intention for this to happen, so I think that we need to hear all the sides and hear the implications.
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Mrs Caplan: I don't mind if you want to stand it down for a couple of minutes --
Interjections.
Mrs Johns: I think we need to hear these arguments to decide if this is valid. I have policy people behind me saying, "Hey, what about section 35?" and I think we need to hear about that before we talk about this also. Just go ahead.
Ms Juta Auksi: My name is Juta Auksi. I'm with the Ministry of Health. I just wanted to point out as well that it would be, in the first instance, the substitute decision-maker, in applying the substitute-decision criteria, who would be determining whether it was impossible. If people felt there was a problem with that decision, then the same remedies would exist as discussed earlier with the treatment decision, that either the health practitioner or, in this case, sorry, the person who is responsible for the personal assistance service could apply to the board for a compliance review, or any person could apply to the board to become the decision-maker in place of the person who was making what was thought to be an inappropriate decision.
So if, in applying those criteria, there was something really wrong and questionable, then there is a way to address it.
Mrs Caplan: In the simplest case, using my going outside example, if it was my expressed wish to go outside every day, weather permitting, and my substitute decision-maker said, "I don't want you to take her outside any more. I think it's impossible to take her out because she can't sit in the wheelchair; you'd have to take her out flat on a trolley," and they made that decision and a care provider said, "Yes, it's a lot of bother for us to put her on a trolley and take her out every day," I wouldn't get to go outside?
Mrs Johns: I just wanted to bring an analogy they gave me to the forefront here.
Mrs Caplan: Could you answer my question first?
Mrs Johns: Can we answer that question?
Ms Auksi: It would depend on whether this issue came up in the personal service decision under this act, whether this act was what would be used to address the issue or whether, for example, there might be some -- like if someone had a complaint with regard to the services they were getting in a long-term care facility, whether there would be another vehicle for addressing that concern. Anna Burwash might be in a better position to answer that than I would. Not everything would be addressed through the consent process per se.
The issue we're talking about is not whether the service is available but whether the substitute consents or doesn't consent to it.
Mrs Caplan: Isn't the issue that we're talking about overruling of a wish or a value? I've used something very simple. We all agree it's a good idea, if people are able, to take them outside every day. Would this amendment that you've brought forward allow my substitute decision-maker to say: "It's too much bother. She doesn't know anyway where she is or what time of day it is, whether it's morning or night. I think it's impossible to put her on a trolley and take her out when the sun is shining, so don't bother, because I don't like her very much."
Ms Burwash: I just don't think that the substitute decision-maker would be able to make a credible case that that was impossible.
Mrs Caplan: I'm looking for that answer.
Mrs Boyd: The section actually says if the person does not know of a wish applicable to the circumstances, okay? Or, if it's impossible. So we're not worried about where you don't know about a wish; it's where it's impossible to comply with the wish. I suppose some of the most common ones are issues around toileting, around ambulation. It's very hard sometimes to ensure that people get the kind of services that they expect around being walked, getting the exercise that they need. In a lot of long-term-care facilities, in fact, we hear providers complaining that as their resources get tighter and tighter, their ability to keep people going and ambulatory becomes more and more difficult.
I guess our concern here is, if it's impossible to comply with because of the priorities and the decisions made about resources in a long-term-care facility, that's not appropriate, and it's not clear to me that that isn't going to be the situation here.
It's the same issue as it was around crisis, that it has to be the crisis for the person, not the crisis for the facility. You made that change and I really appreciate it. I guess the more we talk about this the more I get concerned about whether this is impossible for the facility or the caregiver in an appropriate way or not. It's very hard.
Mrs Johns: I think that's a good point, and on that issue I think I'll give the legal counsel a few minutes to think about it. As I said, I apologize for the standing down, but it's something that hasn't come up with us before. We'll see if we can come to some other suggestion or if they will come back and talk to me after. I won't hold everybody up on this one.
The Vice-Chair: We'll stand down section 57, schedule A. What about the amendment, Mrs Boyd, your amendment following, subsection 57(1)?
Mrs Boyd: That is now withdrawn, because of course it's the age amendment.
The Vice-Chair: Understood. Section 58, schedule A.
Mrs Johns: I'm on page 156, a government motion, and it's on section 58.
I move that section 58 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Information
"58. Before making a decision on an incapable recipient's behalf concerning a personal assistance service, a substitute decision-maker is entitled to receive all the information required in order to make the decision."
We're changing "service" and "recipient."
The Vice-Chair: Carried? Agreed. Section 58, as amended? Carried.
Section 59, schedule A, Mrs Johns.
Mrs Johns: I move that section 59 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Change of decision
"59. Authority to make a decision on an incapable recipient's behalf concerning a personal assistance service includes authority to change the decision at any time."
The Vice-Chair: Carried? Agreed. Section 59, as amended? Carried.
Section 60, Mrs Johns.
Mrs Johns: Page 158: I move that section 60 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by,
(a) striking out "resident" in the third line and substituting "recipient"; and
(b) striking out "described in the resident's personal assistance plan" in the fifth and sixth lines.
The Vice-Chair: Carried? Carried. Section 60, as amended? Carried.
Section 61, Mrs Johns.
Mrs Johns: I move that section 61 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Personal assistance service provided
"61(1) If a person provides a personal assistance service to a recipient in accordance with a decision made on the recipient's behalf that the person believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this act, the person is not liable for providing the personal assistance service without consent.
"Personal assistance service not provided
"(2) If a person does not provide a personal assistance service to a recipient because of a decision made on the recipient's behalf that the person believes, on reasonable grounds and in good faith, to be sufficient for the purpose of this act, the person is not liable for failing to provide the personal assistance service.
"Reliance on assertion
"(3) If a person who makes a decision on an incapable recipient's behalf concerning a personal assistance service asserts that he or she,
"(a) is a person described in subsection 18(1), as it applies for the purpose of section 56;
"(b) meets the requirement of clause 18(2)(b) or (c), as it applies for the purpose of section 56; or
"(c) holds the opinions required under subsection 18(4), as it applies for the purpose of section 56,
"a person who provides a personal assistance service to the recipient is entitled to rely on the accuracy of the assertion, unless it is not reasonable to do so in the circumstances."
The Vice-Chair: Any discussion? All those in favour? Carried. Section 61, as amended? Carried.
Section 62, government amendment, Mrs Johns.
Mrs Johns: Page 161: I move that section 62 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Person making decision on recipient's behalf
"62. A person who makes a decision on a recipient's behalf concerning a personal assistance service, acting in good faith and in accordance with this act, is not liable for making the decision."
The Vice-Chair: All those in favour? Carried. Section 62, as amended? Carried.
Section 63, Mrs Johns.
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Mrs Johns: Page 162: I move that subsections 63(1), (2) and (3) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Application for review of finding of incapacity
"(1) A recipient may apply to the board for a review of an evaluator's finding that he or she is incapable with respect to a personal assistance service.
"Exception
"(2) Subsection (1) does not apply to,
"(a) a recipient who is a guardian of the person, if the guardian has authority to make a decision concerning the personal assistance service;
"(b) a recipient who has an attorney for personal care, if the power of attorney contains a provision waiving the recipient's right to apply for the review and the provision is effective under subsection 50(1) of the Substitute Decisions Act, 1992.
"Parties
"(3) The parties to the application are:
"1. The recipient applying for the review.
"2. The evaluator.
"3. The member of the service provider's staff who is responsible for the personal assistance service.
"4. Any other person whom the board specifies."
The Vice-Chair: Any discussion? All those in favour? Carried. Section 63, as amended? Carried.
Section 64, a government amendment, Mrs Johns.
Mrs Johns: Page 163. I move that subsections 64(1) to (5) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Application for appointment of representative
"(1) A recipient who is 16 years old or older and who is incapable with respect to a personal assistance service may apply to the board for appointment of a representative to make a decision on his or her behalf concerning the service.
"Application by proposed representative
"(2) A person who is 16 years old or older may apply to the board to have himself or herself appointed as the representative of a recipient who is incapable with respect to a personal assistance service, to make a decision on behalf of the recipient concerning the service.
"Exception
"(3) Subsections (1) and (2) do not apply if the recipient has a guardian of the person who has authority to make decisions concerning the personal assistance service, or an attorney for personal care under a power of attorney conferring that authority.
"Parties
"(4) The parties to the application are:
"1. The recipient.
"2. The proposed representative named in the application.
"3. Every person who is described in paragraph 4, 5, 6 or 7 of subsection 18(1), as it applies for the purpose of section 56.
"4. The member of the service provider's staff who is responsible for the personal assistance service.
"5. Any other person whom the board specifies.
"Appointment
"(5) In an appointment under this section, the board may authorize the representative to make a decision on the recipient's behalf,
"(a) concerning the personal assistance service; or
"(b) concerning any personal assistance service, or any of several personal assistance services or kinds of personal assistance services specified by the board, whenever a decision is sought concerning that service or a service of that kind and an evaluator finds that the recipient is incapable with respect to it."
Mrs Caplan: The only discussion point that I would make -- and this is for Mr Tilson, who I know --
Mr Michael Brown: Give Mrs Johns a rest.
Mrs Caplan: And to give Mrs Johns a rest. Actually, that's the other reason, to give Mrs Johns a rest and catch her breath for a minute.
The reason that we are reading these amendments, which frankly just change the one word from "personal assistance plan" to "personal assistance service," is because the government --
Mr Michael Brown: And "recipient."
Mrs Caplan: And "recipient," the language of it -- is because the government didn't consult. If you had spoken to the organizations, the nursing home association and so forth, they would have told you before you tabled this legislation what the language should have been. This is just one example, only one -- and I'm making the point now to give you a rest -- but the truth is all of these copious amendments that are taking tremendous time before this committee to change a simple word could have been avoided if the government simply had consulted with those people who know what the legislation should say and what the changes should have been.
Mr Tilson: I learned my lesson.
Mrs Caplan: I'm glad you learned your lesson.
The Vice-Chair: Any discussion with respect to the motion? All those in favour? Carried.
The second amendment to section 64 is a Liberal amendment.
Mrs Caplan: This one is not because the government didn't consult.
Mr Michael Brown: Probably it is, actually.
Mrs Caplan: This one is actually an amendment that's going to be withdrawn because it was dependent upon something previous that the government didn't accept.
The Vice-Chair: Section 64 as amended? Carried.
Section 65, Ms Johns's government amendment.
Mrs Johns: Page 166.
I move that subsections 65(1) and (2) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Application for directions
"(1) A substitute decision-maker may apply to the board for directions if the incapable recipient expressed a wish with respect to a personal assistance service, but,
"(a) the wish is not clear;
"(b) it is not clear whether the wish is applicable to the circumstances;
"(c) it is not clear whether the wish was expressed while the recipient was capable; or
"(d) it is not clear whether the wish was expressed after the recipient attained 16 years of age.
"Parties
"(2) The parties to the application are:
"1. The substitute decision-maker.
"2. The recipient.
"3. The member of the service provider's staff who is responsible for the personal assistance service.
"4. Any other person whom the board specifies."
The Vice-Chair: Any discussion? All those in favour? Agreed.
One more amendment to section 65, an NDP amendment. Ms Boyd.
Mrs Boyd: That is withdrawn, Mr Chair, because it involves the age of 16.
The Vice-Chair: Section 65 as amended? Carried.
Section 66, government amendment. Ms Johns.
Mrs Johns: Page 168:
I move that subsections 66(1) and (2) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Application to depart from wishes
"(1) If a substitute decision-maker is required by paragraph 1 of subsection 57(1) to refuse consent to a personal assistance service because of a wish expressed by the incapable recipient while capable and after attaining 16 years of age, the substitute decision-maker may apply to the board for permission to consent to the personal assistance service despite the wish.
"Parties
"(2) The parties to the application are:
"1. The substitute decision-maker.
"2. The recipient.
"3. The member of the service provider's staff who is responsible for the personal assistance service.
"4. Any other person whom the board specifies."
The Vice-Chair: Any discussion? All those in favour? Carried.
The second amendment to section 66 is an NDP amendment. Ms Boyd.
Mrs Boyd: That's withdrawn. Again, it involves 16 years of age.
The Vice-Chair: Section 66 again, Ms Johns's government amendment.
Mrs Johns: Page 170:
I move that subsection 66(3) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "resident" in the fourth line and substituting "recipient."
The Vice-Chair: Any discussion? All in favour? Carried.
Section 66 as amended? Carried.
Section 67, government amendment. Ms Johns.
Mrs Johns: Page 171:
I move that subsections 67(1) and (2) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Application to determine compliance with section 57
"(1) If a decision concerning a personal assistance service is made on an incapable recipient's behalf by his or her substitute decision-maker, and if the member of the service provider's staff who is responsible for the personal assistance service is of the opinion that the substitute decision-maker did not comply with section 57, the member of the service provider's staff who is responsible for the personal assistance service may apply to the board for a determination as to whether the substitute decision-maker complied with section 57.
"Parties
"(2) The parties to the application are:
"1. The member of the service provider's staff who is responsible for the personal assistance service.
"2. The recipient.
"3. The substitute decision-maker.
"4. Any other person whom the board specifies."
The Vice-Chair: Any discussion? All those in favour? Carried.
The second amendment to this section is an NDP amendment. Ms Boyd.
Mrs Boyd: The purpose of this amendment is to allow any person to apply to the board, not just a staff member of the care facility staff or the service provider's staff. I see no point in our going through the same discussion that we've had before, so I withdraw the amendment.
The Vice-Chair: Withdrawn. Again, a government amendment to the same section. Ms Johns.
Mrs Johns: Page 173:
I move that subsections 67(6) and (7) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Deemed not authorized
"(6) If the substitute decision-maker does not comply with the board's directions within the time specified by the board, he or she shall be deemed not to meet the requirements of subsection 18(2), as it applies for the purpose of section 56.
"PGT
"(7) If the substitute decision-maker who is given directions is the public guardian and trustee, he or she is required to comply with the directions, and subsection (6) does not apply to him or her."
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The Vice-Chair: Any discussion? All those in favour? Carried.
Section 67 as amended? Carried.
Section 68? Carried.
Section 69, NDP amendment. Ms Boyd.
Mrs Boyd: I move that section 69 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following subsection:
"Rules of procedure
"(6) The chair may make rules governing the procedure before the board."
The purpose behind this is to make sure that there is consistency in terms of the way the board acts. At the present time there is no way of making that determination. It's quite normal under boards and commissions that the chair be able to make the rules of procedure for a board, and I think it would be appropriate for us to put this in.
I'd quote Judith Wahl from the Advocacy Centre for the Elderly, who said:
"Under the CTA section 36(2), the chair of the board has the power to make rules governing board procedures. The HCCA does not give the chair the same power. There, procedures may vary from one hearing to another resulting in inequities in the system. Also, where difficulties arise regarding procedure, the chair may now decide such matters. Under the HCCA, this will not be possible."
We urge that you understand that there will end up being difficulties if you do not give the chair the authority to do this, common under most boards. Certainly I know that many of the agencies and commissions are given this power and it would be appropriate to ensure there is consistency of application.
Mrs Caplan: We agree.
Mrs Johns: I have been told that this is covered under another act, and I just wanted to have legal counsel explain it to all of us here and then we can decide.
Ms Perun: The reason it was removed from the Consent to Treatment Act and the new Health Care Consent Act is because in the meantime we had amendments done to the Statutory Powers Procedure Act which stipulate that a tribunal may make rules governing the practice and procedure before it; the rules may be of general or particular application; the rules should be consistent with this act and with other acts to which they relate; the tribunal shall make the rules available to the public in English and in French; rules adopted under this section are not regulations as defined in the Regulations Act. We had advice from the chair of the board that it would be redundant to repeat it in the Health Care Consent Act because these were new powers given to the tribunal under the amendments to the Statutory Powers Procedure Act.
Mrs Caplan: Where was that then?
Ms Perun: That was under the Statutory Powers Procedure Act. It was amended in 1994, I believe.
Mrs Boyd: I'm not clear, and I do remember that we did that, but is this board considered a tribunal for the purposes of that?
Ms Perun: Yes.
Mrs Boyd: Then I withdraw the amendment.
The Vice-Chair: Shall section 69 carry? Carried.
Section 70? Carried.
Section 71, NDP amendment. Ms Boyd.
Mrs Boyd: I move that section 71 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Assignment of board members to deal with applications
"71(1) The chair shall assign the members of the board to sit in panels of three or five members to deal with particular applications.
"Who presides
"(2) The chair shall designate one member of the panel to preside over the hearing to be conducted by the panel in relation to the application.
"Expertise in evaluating capacity
"(3) At least one of the members of a panel that is assigned to deal with a case involving capacity shall be a person with expertise in evaluating capacity.
"Quorum
"(4) A majority of the members of the panel constitutes a quorum.
"Decision of board
"(5) The decision of a majority of the members of the panel is the decision of the board."
We heard many, many deputants come before this committee who, although they understood the reasons expressed by the government in going to a one-person board, did not agree with that decision. Many vulnerable people said very clearly to us that it would be inappropriate for one person to make a determination that might involve literally all the rest of the life of an individual, and it's just as inappropriate to leave that to one person who would of course bring biases and particular views into the situation.
The reason we have very important tribunals, and the name "tribunal," sit as more than one person is to try and ensure that we have a variety of views expressed and that no one person can make a determination that has such an effect on one person's life.
Let me name the groups that recommended the composition of the board remain at three to five members specifically. They were the Niagara Mental Health Survivors' Network; the London Battered Women's Advocacy Centre; PUSH London; Terri Grant-Galli; Alzheimer Association of Ottawa-Carleton; CMHA, Ottawa-Carleton; Council of Aging -- Ottawa-Carleton; Patients' Rights Association, Thunder Bay; Ontario AIDS Network; CMHA; David Winninger; Thomas More Lawyers' Guild of Toronto; Justice for Children and Youth.
Although that specific recommendation was not made by many of the other deputants, they expressed concern about the one-member panel, and I'm sure the parliamentary assistant got very tired of saying to people, "But in the interests of expediency, of speed, of making sure that these decisions are made quickly in rural areas and in northern areas, it's necessary for us to have only one member." I think she would admit she failed to convince any of those representatives or vulnerable people themselves that it is ever appropriate for this kind of very important decision to be taken by one person.
One of the deputants said, "I think it is unfair that this go ahead," and Mr Marchese has a whole lot of the quotes available on this particular issue. I urge the government to look at the very serious representations that were made and the possibilities of real injustice here.
I think it has been overstated that it's so difficult to get these panels together. That is not the question. I think it is an attempt to save money and that is not an appropriate kind of saving. A person's entire life, the course of the rest of a person's life may depend upon the decision of this board, and it seems to me most inappropriate that the decision be made by one person.
Mr Marchese: I just want to support my colleague with further statements that have been made by other groups and, again, this is to suggest that we are informed by a whole group of people who have a great deal of experience of this as well and that's why we present this amendment based on what we heard.
On the single member or panel of members:
"The current provisions requiring the board to sit in panels of three or five members should be retained." My colleague mentioned all of those groups and there's no point in repeating them because she covered them all.
Others say the following:
"The board should be required to sit in a panel of three. It is inappropriate for one person who may be prejudiced against a patient due to sexual orientation" -- as one example -- "to have the sole authority on judging the patient's ability or capacity to make his or her own decisions." That was OAN.
"Clarify the circumstances under which the person will be afforded a panel of three or five as provided under subsection 72(26) of the bill amending the Mental Health Act rather than a panel of one under this section." That was CMHA.
"The board should be required to sit at a minimum as a panel of three and at least one should have expertise in capacity assessment." That was TMLG and Mr Winninger.
"The board should sit in a panel of three with at least one member having expertise in capacity assessment and if a youth is involved then at least one member should have expertise with youth." That was JCY as an organization stating their concerns around that.
"There is concern that a single non-health professional will not be able to fully understand the intricacies and subtleties of capacities," says another person from OGH.
That gives us significant concern as to why it is that one single person would be inappropriate and why it is that we need the safeguards to protect a number of people when they're determining such an important issue of capacity or incapacity, and so on that basis we have moved this motion. I know the government is not moved by it, but we were and we are very concerned, as all these organizations, that one is inappropriate, and three at least should be a requirement.
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Mrs Boyd: I'm concerned that some members, some of my colleagues on the other side, might think I was imputing motives to them around the issue of cost of the three-member panel, and I would just remind them what the chair of the board said when he was here. He said directly to the parliamentary assistant, "I wish I didn't have to make this recommendation," that it was a resource-based recommendation.
I don't have Hansard in front of me, but I think those of us who were here heard him say how much he regretted that and that he thought it would have been better for people to be able to sit as more than one. I'm quite happy to be corrected, if Hansard shows I'm wrong, but I certainly recall him saying very clearly that it was a recommendation from him, but it was made because of the budgetary constraints faced by the government.
Mrs Johns: The government cannot support this amendment and I just want to draw your attention to the arguments. I know you've heard them all over the past period. Both Mrs Caplan and myself have been making them. Basically, we believe that we need some flexibility in the system. This is not totally a financial decision. There are a number of different issues and Mrs Caplan has different issues than I do on this.
Coming from rural Ontario, and talking about northern Ontario also, we wait up to seven days for appeal processes to happen. We believe it has to happen on a more timely basis. The person on the one-man board --
Mrs Boyd: One-person.
Mrs Johns: -- one-person board, thank you very much -- has a number of criteria that are very impressive: a lawyer, member of the bar for at least 10 years, has been on the board for two years, possesses any other qualifications that the chairman of the board decides is important, and on top of that can go out and get any necessary additional information or have anyone else assist that he or she believes needs to be there to be able to make the appropriate decisions. I think we have covered off the issue people are concerned about and the government will be opposing the amendment.
Mr Tilson: I have just a few brief comments to add. These requirements of these individuals who are sitting alone, as specified in the current section 71 that's being proposed, are almost the precise requirements for being a single judge in a court of law. It's as if you're suggesting that single individuals aren't capable of handling these very difficult decisions. The qualifications of these people as spelled out in the legislation, as I repeat, are identical -- perhaps not to the letter but almost identical; Mrs Boyd could confirm -- to the qualification for being a judge in this province, who are able to hear very difficult decisions as single individuals. I think they'd be greatly offended to hear it's being suggested that they, as individuals, can't make those decisions.
But I think the real issue, and my question is to Mrs Boyd who made the motion, is to confirm the issue that was raised by Mrs Johns, and that is the issue of this seven-day time frame. Your party, of all parties, experienced the Askov horror stories, and decisions must be reached in a timely fashion, whether in these types of applications or any other judicial types of applications.
The feeling is there that on the proposal you put forward of three or five, there simply isn't the person power to conduct these proceedings. My comment is that, number one, I believe the qualifications of these individuals are very stringent, very high standards as an individual who hears applications alone, and secondly, there's the issue of being able to make these decisions in a timely fashion. We don't believe that with the three or five members in some situations -- with the exception of Mr Brown, most of you people on your side are city people. I can tell you that out in the country things don't move as fast as you might think they would.
Mr Marchese: I'll leave the argument of the individual and that person's capacity in relation to a court to my colleague Mrs Boyd. I think she would want to comment on that.
I want to comment on the whole issue of northern Ontario, that you require that flexibility and that is why you would want one person as opposed to three, because in the north you can't get three. If you agreed with us that one person was inadequate, then what you would say was that because of regional concerns -- but if you agreed with us that three people were more protection for individuals as opposed to one -- we could take care of the issue of the north by saying that under those circumstances, or under some circumstances where it's impossible to get three people, then you could designate one person. You could do that. That's something that could be accommodated, is the point I'm making.
Interjection.
Mr Marchese: Sorry, where are you referring me to?
Mr Tilson: I'm sorry.
Mr Marchese: The essential point is that we think three provides protection and one does not. With respect to the issue of the north, I'm not sure that is the proper example to say: "The reason we'll only have one is because in the north we can't have three. We can't find the resources to do it." I think that's an inappropriate argument to make why it is you should only have one. I think you need the protections there and one is not sufficient.
Mrs Caplan: I spoke to this actually at one point during the hearings and I expressed that there were a couple of reasons why I thought this could be appropriate as a provision in some cases. I wasn't here when we heard from the chair of the board, who is someone I have a great deal of respect for and the job he's done I think is excellent, but I would like to read his words because I was not here and I think they bear repeating. There was a suggestion that he said this apologetically, and I don't believe he did. I read this because I wanted to know whether or not my own thinking was along the lines of the presentation he would ultimately make, and it is.
He stated that there were four reasons and I'm going to put this because I think this is an important issue. We heard about this from a lot of people and I also think there are some misconceptions. I think the most important aspect of what he had to say was the fact that: "Theoretically, under Bill 19, a maximum of about" -- one quarter -- "26% of applications...could be heard by a single member. The intention, however, is to apply the provision very" carefully. "It is expected that no more than 5% to 10% of the hearings would involve a single-member quorum at the beginning. Assuming current volume, this would result in savings."
He went on to say that "73% of the board hearings involve involuntary admission" and these "would continue to require three members," and involuntary admissions are the place where you take away individuals' rights and they are admitted to a facility, likely a mental health facility. In that case, what he said is 73% are involuntary admissions to mental health facilities and in those cases they would continue to have the three-member boards. That was the commitment made by the board chair as to how this provision in the act is applied, and since it is in Hansard I expect that would be the result of the application of the law.
The other point he makes is: "Of the balance, many hearings involve applications heard together with reviews of involuntary admission" at the same time. He uses the legal words "on the same docket." "These hearings would also continue with three members. Complex hearings as identified by the parties or the board could be heard by three members."
I think that's important as well because originally I had thought that the discretion and the decision would be left to the chair of the board. My understanding from his presentation before this committee is that if parties request it, they could then have a three-member board. That is an important undertaking from the board chair.
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The other thing he mentions, which I think responds to what we've heard from Mr Tilson -- I had mentioned it in my comments, having thought about this -- one is that he says that, "Only the board's most experienced and qualified lawyer members would be allowed to hear cases on their own," and that this is consistent with the authorities given for single judges as they sit in court cases although -- this is a shot, Mr Tilson; you might want to listen. Given your government's experience now with what's happening in the courts that doesn't give me any confidence that you're going to fix that either.
However, that aside, and I didn't mean to provoke you, the other point he makes that I think is worthwhile is that it provides a degree of informality, and in some cases that is appropriate. I mentioned that initially when I was thinking about what this would permit. "The single-member quorum would make the whole process less imposing and allow greater flexibility where appropriate." I think that was an important point because we know that these types of hearings can be very intimidating and where you have a very well experienced member, I think it is reasonable to want to allow the board to have some discretion to make sure that the person isn't intimidated during the finding of a board.
The other point is that all the board's ruling are appealable to the courts. One of the things I found interesting as I've reviewed the workings of this board is that very few of their decisions are actually overturned. But there is the opportunity for the minister to monitor that through the annual report of the board, and should they see a change in that, then I think there's always the opportunity to influence the decisions the chair is making about the use of the single panel. I think that's appropriate because the board chair is accountable to the Minister of Health who makes that appointment.
The last matter I wanted to raise, Mr Tilson and Mrs Johns, is that I think we do have to be sensitive to the need to respond quickly to areas that are harder to reach, more remote, and that it is often very difficult -- I remember this from my own days sitting in the chair of the Minister of Health -- to find a full board panel, to be able to organize it, because the board members don't do this on a full-time basis. They have law practices and other things they do with their lives. To be able to put together a board -- because by law there's a requirement for what the composition is. To find people who could respond quickly enough -- you could usually get one, but we were frustrated by the fact that you had to have a minimum of three at all times. There were, I felt, unnecessary delays in responding when it came to remoteness.
While there is cost saving, and I have no objection to cost saving, the issue here is not is it going to save money or not save money. It is, will people's rights be protected, will they have access to hearings in a timely way, will they be responsive and sensitive, will they continue to have the right to appeal if they are dissatisfied with the hearing, and is the board chair accountable? To all of those I answer yes, and therefore we will be supporting the single board with the hope that the government, through the annual report of the board -- and I'm putting this on the record. I would hope that in its annual report the Consent and Capacity Board would identify how many times a single board had been used. That would be helpful. If the government will agree to ask the board to make note of that in its annual report, that might give some comfort to those who have less comfort with supporting this amendment than I have myself.
We will be supporting this, but we would request that the annual report contain the number of times, the percentage, actually, that a single board was used, and also the number of appeals that resulted and the number of court decisions that overturned the board's findings. Those would be interesting data to have contained in an annual report.
Mrs Boyd: First of all, I think Mrs Caplan meant she was not going to support the amendment.
Mrs Caplan: I'm not supporting your amendment. We're supporting the government's amendment.
Mrs Boyd: You mean you're supporting their section of the act.
Mrs Caplan: That's right.
Mrs Boyd: I always get very frustrated around this kind of issue. I'm rather surprised at my Liberal colleague, who has been indignant about things set up by regulation without any basis in the legislation being unacceptable in these very sensitive areas. I have utmost respect for the chair of the board as well, and the member is quite right that he has made an undertaking to us in his report about how often this would happen, but there's nothing in the legislation to limit him to that. Quite frankly, the financial issue around this is going to limit his ability to maintain that kind of commitment, I'm sure.
Mr Tilson made the mistake of mentioning the Askov decision. Well, we did, we resolved the Askov decision by putting resources into the court system, resources now threatened by your government. The issue here is if you want to get access to the board, give them the resources so they can do it properly.
Mr Tilson: That's your answer, to keep hiring people. That's the problem.
Mrs Boyd: When we are talking about people's lives, it's rather important that we make sure they have a responsibility. If someone's been declared incapable -- who, first of all, may have been declared incapable and nobody's bothered to tell them, but somehow they found out so they were able to appeal -- and then they find themselves sitting in front of one person, try and imagine what that is like. Try and think about what that means.
Mrs Caplan said the chair of the board said 73% of the board hearings involve involuntary admission. He was talking about mental health facilities, and he said in those cases there would be a three-person board. But we've just gone through section after section where we're talking about what is essentially the involuntary admission to a long-term-care facility, and there's no guarantee. This is going to be a growing group of these situations. What we're saying to the frail elderly is, "We certainly are going to guarantee that those who come under the Mental Health Act will get a three-person board, but you, frail elderly person, are going to have to be satisfied with a one-person board." I think the reasoning here is going to undermine greatly the confidence of vulnerable people in the ability of this act to protect their interests, and I urge the government to reconsider.
Mr Michael Brown: I was interested in the comments, particularly concerning northern and rural Ontario. One of the things that I, and I'm sure all members representing either northern or rural southern constituencies, hope wasn't being suggested is that the level of justice, might be the word, or the level of decision-making will be somehow less to us because the one-person board would hear more of our cases. I didn't take that to mean that. I was just a little concerned, if the hearing needed to take place in Algoma Mills or in Wawa, that somehow we would dispatch one single person because that single person could get there faster than the board of three. That concerned me and I hope that's not what I was hearing. It seems to me that if the case warrants a three-member board, we should have a three-member board, whether that happens in Moosonee or in Gore Bay or in downtown Toronto. I'm not hearing that suggestion, but I just wanted to put that out, that the level of justice has to be the same for us all, and whatever resources it takes, we want those expended because these are important decisions for the people I represent as well as for the people in Toronto. That just has to be said.
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Having said that, I am not convinced that a single adjudicator or a single person cannot render a decision, in many cases, as well as three persons. It seems to me the qualifications listed here are quite extensive and that in many cases a single person can render a level of justice that is the same.
I'm comfortable with what the government is doing, but I think we should caution the chair that we want to have some review of how this works in practice. Perhaps in his annual report he could indicate to the Legislature whether there is a variance of decisions based on how many people are making this decision. If statistically there's a difference in the way decisions appear to be made by three-member boards as opposed to one, then legislators are aware and we can seek redress to this problem, if in fact there is one.
The Chair: The question is --
Mr Tilson: Mr Chair.
The Chair: I'm sorry, I was putting the question.
Mr Tilson: I just want to make a brief comment. I haven't said anything all day.
The Chair: It's the second time you've spoken to this matter, Mr Tilson, I'd just remind you. It's been a long time, I know, but not that long.
Mr Tilson: Mr Chairman, I just wanted to confirm with Mr Brown that certainly that wasn't the intent of my comments. It may well be that there may be situations in a large urban area, for whatever reason, that a one-person board member is what is required. I just wanted to confirm that it certainly wasn't my intention to say that all cases out in the north or the rural areas should be heard by one individual.
The Chair: I think Mr Brown indicated that for us. The question shall pass?
Mr Marchese: A recorded vote, Mr Chair.
Ayes
Boyd, Marchese.
NAYS
Michael Brown, Caplan, Doyle, Grandmaître, Guzzo, Johns, Leadston, Parker, Tilson.
The Chair: All those in favour of section 71, as unamended? Carried.
Section 72. Mrs Boyd has an amendment.
Mrs Boyd: I move that subsection 72(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "within the past five years" in the last line.
It is inappropriate, and it is even more inappropriate now that there is the possibility of a one-person panel, for a member of that panel to be either the physician or the lawyer at any time of the person appearing in front of the panel. That is absolutely inappropriate. If indeed we are going to let lawyers with all these wonderful qualifications sit in judgement of people, they ought not to have been the lawyer for that person in the past. That is a clear conflict of interest. I believe the law society would think it is a clear conflict of interest. It is even more serious if we are seriously considering having a physician sitting on a more-than-one-person panel be able to pass judgement on a person to whom he or she has provided medical services in the past, absolutely inappropriate.
Given the delays that people see in terms of complaints in front of the discipline committee of the OMA -- or the law society, as far as that goes -- this could well be a person who had laid a complaint against the person who is then sitting in judgement because those decisions often take many years to be rendered. We heard a number of deputants tell us how inappropriate this was, that they did not want anybody who had previously been their physician or their lawyer to sit on these panels, and that the prohibition against a previous relationship is an extraordinarily important issue around conflict of interest.
Mrs Johns: I've been thinking a lot about this because I think it's fairly important. With a one-member board, it would be a lawyer. First of all, it's a very important decision for one person in the first place, and I have substantial problems with the fact that they have acted for the person in the past. With the three-to-five-member board, I don't have the same kind of concerns, because as I think Mr Tilson is telling me right now, a lawyer wouldn't be able to act in that regard because it would be a conflict of interest.
Mrs Boyd: You shouldn't be allowing it, then.
Mrs Johns: I was going to suggest that I wanted to change your motion to take out the "within the past five years" for a one-member board. How would you feel about that?
Mrs Boyd: I don't regard that as a friendly amendment. I think it is just as serious with a three- or five-member panel. It is more serious with the one-member panel, no question about that, and I really think it would be found to be a conflict of interest. That is a very serious issue, and at least that should be addressed, but you may make your own amendment on that. I consider it an unfriendly amendment to my amendment. My amendment is just as serious for a three- or five-member panel, where a physician or a lawyer sitting on that panel may have represented or treated that person in the past.
We heard many deputants saying: "This is not appropriate. This is not fail-safe. These people have a huge amount of decision-making over us. We may have disagreed with them in the past, we may have refused treatment from them in the past or we may have fired them as our lawyer in the past, and that puts us in a very vulnerable position. It is a conflict of interest. It should not be allowed."
Mr Michael Brown: I tend to agree with Mrs Boyd. Would the government give me some justification for why it's only five years? I would just like to hear the reasoning.
Mrs Johns: I'll have legal counsel speak to it. We've been talking about this for a couple of days, and I think Mrs Boyd is making a very powerful argument here. As I said, we came with no preconceived notion about this because I wanted to talk about the one-person board, the three and the five. I believe she's quite correct and that we should go the route she suggests. But I will see if we have a legal reason we put the five years in.
Ms Perun: There's no real legal reason. It was a policy decision that was made basically on the recommendation of the chair of the board, who was concerned about financial reasons predominantly, and that it was very difficult to get together enough people in small communities.
Mr Marchese: That's just the issue, that for reasons of expediency we apply such a rule. We think it's wrong. The basic, fundamental rule is that a hearing must be seen to be impartial. That's it. You don't need to know any more.
Mr Tilson: You're right, Rosario.
The Chair: Mrs Johns, did you have a formal amendment that you'd like to make to this?
Mrs Johns: We'll take theirs. Just a second. Can you take that over to Mrs Boyd?
Mrs Boyd: Legislative counsel has suggested that we withdraw the original and move this.
The Chair: Fine. Read it out to us, please.
Mrs Boyd: I move that subsection 72(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "is the member's patient or client or was the member's patient or client within the past five years" in the third, fourth and fifth lines and substituting "is or was the member's patient or client."
The Chair: Is there any opposition to the removal basically of a time limit and just saying the person is in conflict whether it's during the five years or outside it?
Interjection: No problem.
The Chair: It's good to see the cooperation of the various caucuses. Thank you. That is carried.
1600
Shall section 72, as amended, carry? Carried.
We're moving on to section 73. We have a number of amendments; the first is by Mrs Johns.
Mrs Johns: This is on page 177. I move that subsections 73(3) and (4) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Decision
"(3) The board shall render its decision and provide each party or the party's counsel or agent with a copy of the decision within one day after the day the hearing ends.
"Reasons
"(4) If, within 30 days after the day the hearing ends the board receives a request from any of the parties for reasons for its decision, the board shall, within two business days after the day the request is received, issue written reasons for its decision and provide each party or the party's counsel or agent with a copy of the reasons."
This relates directly to the discussion we had with Mr Bay. We were talking about written reasons. He said he decided that there shouldn't be written reasons totally due to financial reasons. We as a government feel that's not a good enough reason. We suggest that if someone requests the reasons within 30 days, they should be able to obtain them. After that, he said it was difficult to get them, that the transcripts were more difficult to do because of the timing and how many they do. That's why we have suggested this.
The Chair: Is there anyone who would like to speak against the motion? Mrs Boyd?
Mrs Boyd: Are you surprised? We have an amendment to this section as well. It essentially is that the board shall issue written reasons for its decision in all cases and shall provide each party or the party's counsel or agent with a copy of the reasons within two business days after rendering the decision. We disagree that this should only be done on request. We particularly disagree because of the history of lack of advice and information that people get around this sort of thing under this act. We believe very strongly that if a board can render its decision, it must have reasons for that decision, and those reasons tell the person whether they want to appeal the decision. It is really important for us, particularly given some of the changes the government has made in the law thus far around not waiting for treatment, for example, until somebody goes ahead. This all calls into question the ability of the board to explain itself to the people who are most involved. We believe written reasons are the bare necessity to everyone.
The other part of it is that if there aren't written reasons -- and we asked the chair of the board, "Wouldn't those reasons be available?" It was not clear to me whether reasons are suddenly written up when someone asks for them. Aren't they there in the first place, and isn't it much more effective and efficient and fair to present those reasons at the time?
The argument will be made that the Supreme Court often renders a decision without rendering reasons. I'm sure that's the argument Mr Tilson is just whispering in the ear of his colleague. I think that argument is in a whole different regime; it is not in this regime at all. It is like comparing apples and oranges.
I'm glad this is somewhat improved from the existing act as you presented it, and it is somewhat improved. But again it relies on this incapable, vulnerable person to take the action to protect himself or herself. That is the whole issue with this whole bill. This is what vulnerable people told us all over this province, that everything in this act mitigates against their obtaining justice under this regime. This is just another example, like the refusal to give rights advice, like the refusal to inform people of appeal decisions. It's another nail in the coffin of vulnerable people, who simply are being required by you to represent themselves in very vulnerable circumstances. It's just another example of the way in which their rights are being ignored by this government.
Mr Marchese: That's really the point I want to emphasize, that rights do not seem to be as important. Expediency is the issue, saving money is the issue. That's really it. If you don't think that's the issue, your motion is not the appropriate one. As my colleague says, your motion relies on the person to take action. You're assuming that the person has a great deal of sense of mind, once such a decision has been made, that they will request it. You know it won't happen, you know it doesn't, and you're relying on the fact that that indeed will be the case.
The thinking is: "Why should we even bother? If they request it, we'll do it. If they don't, it's not a big deal." Rights are put aside. It's just their rights, but it's not a big deal. If they're found to be incapable, who really cares? That's the effect of your reasoning. You're not saying that, but that's the effect of your motion.
I just want to remind Mr Tilson again of the list of people that have spoken to this issue.
"Amend to require written reasons in all cases," and that was Atnikov, COAOC, FAME, OACL. The acronyms are all listed at the back. I would have to go back and find them. That's why I have to read them in for the record as they are written here.
"Written reasons should accompany a notice of right of appeal to the Ontario Court (General Division) in all cases," says this other organization.
"Impose a mandatory duty on the board to advise patients that they may request written reasons." This is Mr Winninger.
"Written reasons should be provided in all cases. If persons are unable to understand legal concepts or their first language is not English, an effort should be made to interpret the reasons." That's the organization called PCLS.
"Section 73(4) should be amended by deleting the words `if any of the parties so requests' in line 2."
There have been a sufficient number of groups concerned about this. We're concerned about it. We think written reasons should be provided. You should not, because of expediency or because of saving money, do this to facilitate your work. People's rights are much more important, and you should respect that as opposed to simply saying, "If they request it, we'll do it." You know very well very few will make that request. We think it's wrong.
Mr Garry J. Guzzo (Ottawa-Rideau): I find the argument very compelling and I commend the two members opposite for the position, but it's very frustrating to hear the argument being made, and made so capably, by a former Attorney General, because it's true that in many cases in our province, the same situation takes place. You make a point about the Supreme Court of Canada. Every once in a while, maybe 10% of the cases, maybe one third of motion matters, will be dismissed or dealt with without reasons. Indeed, in our own Court of Appeal, there may be almost as many requiring written reasons, with a very small percentage, 10% or 20%, where reasons are not provided.
But in our provincial court, where 90% of the legal work is transcribed, we seldom see judges giving written reasons. How, for example, could a judge do a list of 100 or 120 cases in a day in a provincial court and provide reasons for each and every dismissal or each and every conviction or, at the time of sentencing on pleas of guilty, in each and every situation? They have to finish a list because there are another 100 cases on the list tomorrow. In the Court of Appeal, there's no such pressure. They don't have to start the next case until they finish the first. If it takes a day, fine; if it takes three weeks, that's fine. And the judges at that level are provided with tremendous assistance, tremendous amounts of money to have the assistance available to do the research.
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Who's going to do the research in the situation before us? The individual has to sit down, particularly in any kind of lengthy hearing, and review the documentation, review the evidence. One might think that in a position like that, it's as simple as taking the side that wins and adopting the reasoning of that side. But that's not always the truth. Many times, that person is going to find, as the judge will often find, that neither side is correct. One has to produce the documentation and the basis for the decision in law, do the research, dig out the matters, provide the written, then have it produced.
It is a question of expediency, but it's a question of expediency that we see in many facets of our systems and in many facets of the law. It's a constant thread in terms of this chamber and in terms of this Legislature where maybe 90% of the work, looking at the court system, the people with the least amount of resources turn to a system for assistance and support, people who possibly need the most protection and the most assistance, and they get the least at the provincial level.
I don't know how you can possibly ask in these proceedings that an individual or a panel is going to produce written reasons, produce them quickly and in every case. They should be made available because it is a very valid point. The fact that it doesn't take place in the provincial courts is not a good argument against doing it here, and I appreciate that, but it is not possible and it is not going to be possible to produce them in a timely fashion. To obligate a panel or an individual in that position to produce within a reasonable period of time if requested I think is a safeguard that would have to be seriously looked at. But to say in each and every set of circumstances? You're asking for a backlog and producing a system which would render the decision-making process totally ineffective.
Mr Michael Brown: I'm going to be quite short. It says in the amendment that within two business days of a request, you will have to produce the reasons. To me, it doesn't make much sense to produce reasons when nobody seems to want them. If there's a request, is people want the reasons, they are going to be there within two business days. If nobody requests it, in other words nobody wants them, I don't see a lot of point in producing them. We will be supporting the government's amendment.
Mrs Boyd: I'm very interested in what Mr Guzzo says. I've spent a lot of time in court, and certainly in my experience in both provincial court and in General Division, when someone is found guilty, they are found guilty on the evidence presented in front of the court, and the judge, in delivering the verdict, will normally say what evidence was accepted and what evidence wasn't accepted. You're quite right: It may take some research to look at the case law that's been cited by the crown and by the defence and see how it applies to the evidence in front of the court. That does take some research time.
I'm not sure that's the case in front of the board, because you wouldn't have a lot of case law in front of the board. What the board is trying to determine is whether someone has capacity or has not got capacity, and there must be some reason they come to that decision. Judges always verbally say they either believed the defendant or they believed the crown. At least that's a reason to do it. When we're talking about incapacity, we're talking about something quite different. While I appreciate what he's saying, I agree with him that a resource issue is there in the provincial courts, just as it is in front of the board, and perhaps justice isn't best delivered when resource allocation is the major reason we do things. I would agree with him on that.
The other thing I would suggest to him is that he would never have had someone in front of his court who had been deemed incapable. The difference in what a judge does in the court, particularly in an instance where someone may be incarcerated, is that that person has to be capable of understanding what's going on or else they aren't tried. Capacity is the issue in those cases.
What we are looking at here are people who are being -- that decision is being made: Are they capable or are they not? I think that's a very different situation than what we see in front of our courts; equally serious, at least, and very different.
If in fact within two business days after the day the request is received these reasons can be produced, it means that those reasons exist. How can they be produced within two days? Does that mean they're on transcript? If that's what it means, that within two days these can be produced, surely they can be produced in every case. What is the problem? They're already there. The issue is surely simply printing them out, because in most of these cases the technology would enable us to take the finding of the person and have it done in such a way that, as the tribunal spokesperson, the chair of the tribunal -- if it's three or five -- the individual, as they made their finding, would have to dictate something. We now have the technology that voice dictation can produce a written copy. Why not use the technology so that is always available?
The OACL made an observation on this issue. They said: "In the OACL's view, the consistency of board decisions will depend upon written reasons being prepared in every case. Such reasons will not ordinarily be voluminous or time-consuming. OACL submits that the requirement to issue written reasons in all cases decided by the Consent and Capacity Board should be preserved in the new legislation." I would argue very strenuously that that is really the only way we can be sure that we have consistency in these things. It is particularly important, if we are going to have one-person boards who are not having their work observed by others, to have that kind of consistency.
Mr Marchese: If I were a member on the other side, I would find my colleague's arguments very compelling and persuasive, but I'm not sure that is the case. That's disappointing, and I suspect the government will vote this down, but I do hope that if they do, they will --
Mrs Boyd: No, it's their own amendment.
Mr Marchese: Not their own, obviously, but ours, as we suspect they will, that they will reconsider even their own position and consider something that we think may be a compromise. The compromise is suggested by Mr Winninger, where he says to impose a mandatory duty on the board to advise patients that they may request written reasons. I would think, based on the kinds of arguments he was making, that's something Mr Guzzo can support. If there's a duty on the board to advise patients that they may request written reasons, then once we've told them, some may request them; many may not, but at least you've allowed them the opportunity to do so.
So if you find our position too extreme, for a variety of different reasons, if you then find Mr Winninger's suggestion -- which we have as a proposal further down the line -- too extreme, then I find that a problem. Why would you not then consider something like that, which in my view is a reasonable compromise? You don't have to have written reasons all the time, although I think Mrs Boyd made a very good case as to why you should. But if you can't buy that, then why not allow the duty of the board to say, "You can have them," and then leave the individual that right? It seems then something that should be a basic right on both sides: One to say, "You can request," and the other one to say, "No, we don't want it," or, "We don't need it," or, "Yes, I would like to have it." If you refuse that compromise, you're wrong again.
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Mr Bernard Grandmaître (Ottawa East): I have a question. If we're concerned about the backlog that it would create, can I ask staff or whomever, how many hearings took place, for instance, last year?
Mrs Caplan: We have those statistics.
Mrs Johns: Two hundred and seventy-five? I'm not sure; I think I've got that right.
Mrs Caplan: Nineteen hundred and fifty-seven.
Mr Grandmaître: I've got my answer.
Mrs Johns: Wow, am I off.
Mr Guzzo: And they're regionally dominated.
Mrs Boyd: Must be something in the water.
The Chair: If there are no further questions, I'll put the question. Shall the government amendment pass?
Mrs Boyd: Recorded vote, Mr Chair.
Ayes
Caplan, Doyle, Grandmaître, Guzzo, Johns, Klees, Leadston, Parker, Tilson.
NAYS
Boyd, Marchese.
The Chair: We shall now move to page 178. Are you still proposing to make this amendment?
Mrs Boyd: I wish to read it into the record. I do not think we need to have the discussion, but I do wish to read it into the record.
I move that subsections 73(4) and (5) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be struck out and the following substituted:
"Reasons
"(4) The board shall issue written reasons for its decision and shall provide each party or the party's counsel or agent with a copy of the reasons within two business days after rendering the decision.
"Method of sending decision and reasons
"(5) Despite subsection 18(1) of the Statutory Powers Procedure Act, the board shall send the copy of the decision and the copy of the reasons,
"(a) by electronic transmission;
"(b) by telephone transmission of a facsimile; or
"(c) by some other method that allows proof of receipt, in accordance with the tribunal's rules made under section 25.1 of the Statutory Powers Procedure Act."
I see no reason why we would go through the same discussion on this, but I did want to make it clear that we wanted to make that amendment.
The Chair: I thank you for your accommodation in that regard. You've withdrawn it then.
Mrs Caplan: On a point of order, Mr Chairman: That amendment is out of order because it is contrary and you have to rule it's out of order. She can read it in the record but it can't stand. You have to rule it out of order.
The Chair: I'll so rule then, at the request of Mrs Caplan.
Mrs Caplan: It's out of order.
The Chair: The alternative? What is the position in that regard?
Mrs Boyd: That will be a motion, Mr Chair.
I move that section 73 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following subsection:
"Notice of right to request reasons
"(4.1) The board shall advise all parties to the application that each party has a right to request reasons for the board's decision."
Agreed?
Interjections: Agreed.
Mrs Boyd: Good.
Mr Marchese: Well, the government isn't all that bad all of the time.
The Chair: Subsection 73(4.1) has passed; unanimous consent.
Subsection 73(5) is a government motion.
Mrs Johns: On page 180.
I move that subsection 73(5) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "and the copy of the reasons, if they have been requested" in the third and fourth lines and substituting "and, if reasons are required to be issued under subsection (4), the copy of the reasons".
This is a consequential amendment to the 30 days that we just approved.
The Chair: Carried? Carried.
I now put the question of section 73, as amended. All those in favour? Carried.
We are now proceeding to section 74.
Mrs Johns: Page 181.
I move that subsection 74(2) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "plan" in the third line and substituting "service".
The Chair: Agreed? Carried.
Subsection 74(2).
Mrs Caplan: I move that subsection 74(2) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "at their own expense" in the fifth line.
In speaking to this, this is a new provision. At the present time, if anybody wants to get access to information or request that, they can ask for a photocopy. They shouldn't have to pay for that. I think that it adds not only an unwarranted user fee, but an administrative collection expense and all of that nonsense that I just think is wrong to include in this bill at this time. People should be able to get the information without having to pay for it.
By the way, that is the rule today. I did have some discussions with legislative counsel and I know that there have been some counsels for individuals who have requested pages and pages and unreasonable numbers of filings as opposed to being more specific. I wouldn't have any concern if they wanted to prescribe by regulation some guidelines around that, but to just permit absolutely individuals to have to pay for access to their own records in all cases, I just think that it's unreasonable. It is a user fee and this government promised no new user fees, but in fact we've seen user fees all over the place. This is one place where I hope that they will take it out, I really do.
Mrs Johns: The government's opposed.
Mr Marchese: That's it?
Mrs Johns: You want an explanation? In government motion 198a we're going to put forward an amendment and we're going to be talking about charges at that particular point, because the usual practice for counsel is that they simply call and say, "I want the whole document," as Mrs Caplan has talked about previously.
Mrs Caplan: To be fair, I think that there is some middle ground between making people pay and what has been, on occasion, an excessive practice by some acting on behalf of individuals -- counsels and so forth, attorneys -- requesting whole files. I don't see why you couldn't look at some guidelines to stop the excessiveness but still not penalize the individual who may need a dozen pages photocopied out of their file. I just think it's unreasonable to take an all-or-nothing approach.
The Chair: Is there any further comment before I put the question? If not, shall the amendment pass?
Mr Marchese: Recorded vote.
Ayes
Boyd, Caplan, Grandmaître, Marchese.
NAYS
Doyle, Johns, Ron Johnson, Klees, Leadston, Tilson.
The Chair: The motion is defeated.
Shall section 74, as amended, pass? Carried.
Shall sections 75, 76 and 77 pass? Carried.
We're now proceeding to section 78.
Mrs Caplan: I move that section 78 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following subsection:
"Additional time for filing notice of appeal
"(2.1) Despite subsection (2), if a party to a proceeding before the board requests written reasons under subsection 73(4) within seven days after receiving the board's decision, the appellant may serve his or her notice of appeal on the other parties and file it with the court, with proof of service, within seven days after he or she receives the board's written reasons."
The intention of this is to stop the appeal clock running. As we mentioned earlier, after the board has made a decision, you can appeal to the courts. We have said that written reasons are not required in all cases, but where there is written reason requested, it is frequently for the purpose of an appeal. While we do have a time limit within which the written reasons should be given, it seems unfair that the appeal clock of seven days continues on even before the person has the written reasons that they would need in order to file the application. What this does is say that the appeal clock starts when they receive written notice.
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Mrs Johns: We're opposed to this motion because it would extend the appeal period, it would cause delays and I understand from the people who practise in this area that the notice of appeal can be filed very, very quickly with the following wording:
"We appeal on the grounds that the board erred in fact or law and on such other grounds as the honourable court permits upon receipt of records or transcripts."
So you actually don't have to have the documentation there. That's not the only reason that they may be requesting the written document, so they could file an appeal immediately with that kind of wording and then wait for the documentation.
Mrs Caplan: The whole appeal period is seven days. That's all there is: one week from the time of the hearing date for an appeal period. All we're saying is that the appeal period should start when you receive written notice. It's not a big deal, it's not a huge delay, you're not talking about emergency situations.
Mrs Boyd: Especially when they're saying two days.
Mrs Caplan: Especially since you've already said two days. So all this would do, maximum, is, in the worst-case scenario, the appeal period of one week would start two days later, which is when they will receive their notice. It's a reasonable amendment. It's unreasonable, because effectively what you do is shorten the time limit to five days, and that, I think, is unreasonable.
Mrs Boyd: I think in the absence of this kind of thing, what we will see is a lot of people filing appeals without having the written reasons when if they'd had the written reasons, they wouldn't have filed the appeal. I think you really need to be very clear. People are asking for the written reasons so that they can make a determination as to whether or not they have any reasonable expectation of success in the court. It really is to facilitate. If you're guaranteeing it within two days, you're really not talking about huge delays. If you really are going to get them out in two days, then you shouldn't have a problem with this.
Mrs Caplan: Just to clarify what I said, it's not that you need the written reasons in order to appeal, but the written reasons will tell you whether you have any grounds to appeal. So you're going to get all kinds of appeals go forward when, if you'd simply waited for the written reasons, people may not appeal. That's the intention here. I just want to be very clear that what this is proposing to do is to start the appeal clock from the point at which the written reasons are received. We think that that may then mean that you have fewer appeals and your courts would be less clogged, Mr Tilson.
The Chair: Shall the amendment pass?
Mr Marchese: On a recorded vote.
Ayes
Boyd, Caplan, Grandmaître, Marchese.
Nays
Doyle, Johns, Ron Johnson, Klees, Leadston, Tilson.
The Chair: The amendment is defeated.
Shall section 78 pass? Carried.
Section 79 of schedule A, Mrs Johns.
Mrs Johns: On page 182, I move that subsection 79(1) of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by striking out "plan" in the third line and substituting "service."
The Chair: Agreed? Any objections? Carried.
Mrs Caplan: I move that section 79 of the Health Care Consent Act, 1995, as set out in schedule A to the bill, be amended by adding the following subsection:
"Child admitted to psychiatric facility
"(4) If a person who has been admitted to a psychiatric facility under section 22 and who is less than 16 years old is a party to a proceeding before the board, the children's lawyer shall provide legal representation for the person unless the children's lawyer is satisfied that another person will provide legal representation for the person."
This ensures that if a child is committed involuntarily under the Mental Health Act they will have legal representation. It's a protection for the child. There's nothing in the act now to ensure the child has legal representation. The children's lawyer is actually an office.
Mrs Johns: Legal counsel wants to speak to this.
Ms Perun: As I understand it from the chair of the board, the current section 34 of the Consent to Treatment Act is the same. The new Health Care Consent Act repeats section 34 of the Consent to Treatment Act in section 79. The current act and the current practice of the board is to -- the wording is, if a person who is or may be incapable with respect to a treatment is a party to a proceeding before the board, the board has in fact the jurisdiction to turn to the children's lawyer to assist in finding a lawyer for the child. So that's the current practice under the current provisions of section 34.
We're not changing anything in section 79. So I just wanted some clarification about exactly whether it's the involuntary committal that you're concerned about under the Mental Health Act, whether that's the issue. Because if it's informal admission to which the Health Care Consent Act applies, section 79 would in fact apply already and section 79 provides that the board may direct the public guardian and trustee or the children's lawyer to arrange for legal representation to be provided for the person.
Mrs Caplan: I thought it was clearer if we specified that for children it should be the children's lawyer, and that it was not discretionary; that in other words, when you're dealing with an involuntary committal of a child, a person under the age of 16, it's not a question that the board "may," it's this is the procedure that they will undertake, and that protects the child in that circumstance and it just clarifies it. It just gave me comfort.
Mr Tilson: Isn't subsection (3) quite specific, though?
Mrs Caplan: I don't think so.
The Chair: We seem to have a different legal opinion here. Mrs Caplan, are you completed?
Mr Grandmaître: Too many lawyers.
The Chair: It seems there are.
Mrs Caplan: Because there's the option of either the public guardian and trustee or the children's lawyer, I think if you're dealing with a child it should be the children's lawyer that's called upon to ensure that they have legal representation.
Ms Perun: It is, though. The public guardian and trustee deals with people over 16 and the children's lawyer deals with people under 16, and I understand --
Mrs Caplan: And there's no discretion for the board? Then I read it wrong.
Ms Perun: Basically 79(1) says "the board may direct the public guardian and trustee or the children's lawyer to arrange for legal representation."
Mrs Caplan: You see, I'm concerned with the word "may." It's discretionary and if you want to ensure that children have the representation of a lawyer, either you put this amendment in or you amend it to say "shall." I want to make sure there's no question that it's discretionary and that it's more than procedure.
Mrs Boyd: This section is not included. The amendment that you've got to the Mental Health Act specifically says, does it not, that this section isn't included?
Ms Perun: All the other applications to the board do not -- where we've referred to specifically, like sections 72 to 78 apply, section 79 doesn't apply. It doesn't say that 79 applies but the reading of the entire act says that in any proceeding before the board, where the person is incapable, this section would in fact apply. That is one interpretation of section 79. Now, to make that clearer, we can address it, but deal with it under the Mental Health Act where the two applications come up.
Mrs Caplan: I don't have any problem if you deal with it under the Mental Health Act. It was the vagueness and the fact that it wasn't clear that this applied. So if you'll give an undertaking, I'll withdraw this.
The Chair: She has no authority to give an undertaking in that regard.
Mrs Caplan: No; the parliamentary assistant does. That's what she's here for, is to give an undertaking to do it there.
The Chair: You were speaking to Halyna.
Mrs Johns: I'll give an undertaking that we'll make it clear under the Mental Health Act.
Mrs Caplan: That's great. Thank you.
The Chair: Are you withdrawing the motion?
Mrs Caplan: Yes.
The Chair: Shall section 79 pass, as amended? Carried.
New section 79.1, Mrs Caplan.
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Mrs Caplan: On this one, Chair, I'm going to read it in and then, for the purpose of voting, it could be split into parts because one does not necessarily rely upon the other.
I move that schedule A of the bill be amended by adding the following section:
"Additional duties of the board
"79.1(1) The board shall inform and educate the public with regard to issues related to the various matters that can be the subject of an application to the board and how these matters are determined.
"Advisory committees
"(2) The board shall establish the following three advisory committees to advise it on issues related to the various matters that can be the subject of an application to the board and how these matters are determined and on the education of the public with regard to these issues:
"1. A committee composed of health practitioners under part II and representatives of care facilities under parts III and IV.
"2. A committee composed of persons who are or have been the subject of an application to the board.
"3. Persons who are related to persons who have been found to be incapable by the board.
"Same
"(3) The advisory committees established under subsection (2) shall meet jointly at least two times per year to develop recommendations for the board and the Minister of Health with regard to issues related to the various matters that can be the subject of an application to the board.
"Same
"(4) The advisory committee shall report to the board with recommendations from time to time and shall submit any recommendations from their joint meetings to the board and to the Minister of Health."
In speaking to this, 79.1(1) stands on its own and it is a mandate to participate in the education of the public. If there has been one thing consistent over the last many years, it has been the recommendation from coroners' inquests that there be education as to how the act applies and how the board, in particular, provides education for providers, professionals, families and individuals alike. The board does do that now and they participate in an informal way to share that information.
One of the things that we heard from the chair of the board and that we have heard from so many of the representations and deputations before the committee was the need for information to be shared and, frankly, it's not something that the ministry itself can do or does very well and that mandate has to be given to the body which has all of the experience in this matter. It shouldn't be informal. It should be a legislative mandate because then if it's legislated, it forms part of the annual report as to what they're doing about it, and I think that's very important.
The advisory committee component is, I think, an important idea. It doesn't cost anything. These people are very happy to come together to give advice to the government. This is the Australian model that I have referred to on a number of occasions where, under the auspices of -- they call it their tribunal but it is effectively the same as our Consent and Capacity Board. Because these issues are contentious and they are contentious because of the different perspectives that are brought and we've heard that here. There's a different perspective from the professionals who provide the treatment, there's a different perspective from families and there's a different perspective, frequently, from individuals. One of the places where the Advocacy Commission itself ran into difficulty was in trying to listen to everyone and there was the infighting that, I think, ultimately led to its ineffectiveness and ultimate repeal.
One of the ways that we can encourage the kind of consultation, discussion, dialogue on an ongoing basis is to encourage these groups, that are distinct in an advisory capacity, to feel they have a voice, that they can share information individually and then collectively come together to make recommendations to the government on how things can be improved. So, it's an internal monitoring device. As I said, it's something that I think would be welcomed by the community that, frankly, has been feeling left out and shut out. That's the advocate community, those who have experience and have no voice, formally, within the workings of this system, if you want to use the word loosely: families that are frequently frustrated because they have no voice and no place where they can get information or feel that they can participate to let anybody know what their own frustrations are, and similarly, providers who have expertise from the dealings and workings of the legislation.
I hope that the government will accept this amendment. The reason that I'd like it split is that the first part, which is the mandate for education, is not at all contentious. The second part on the establishment of advisory committees, I think the government may want to talk about that a little bit more and how it can be done. The other thing is, while it doesn't require a statutory requirement in order to do it -- the minister could just decide to do it under the Mental Health Act or under the Ministry of Health Act and set it up, if we get a commitment that he was going to do that -- the reason I posed this amendment and put the notion of the advisory committees in the statute is that we would then have an opportunity to discuss the concept, in the hope that the minister and the government would see it as something of value and implement it. I'm not hopeful that the advisory committees are going to be accepted but I am hopeful that the education mandate, which we have heard from everyone is so very important to be included in the statute, will be accepted.
While I'd hope the whole thing would be acceptable to the government I am realistic, and given the fact that so few of the ideas and suggestions have been accepted by the government, it is my hope that at least the education mandate will be in the statute and that the minister will agree to establish the advisory committees under the auspices of the Ministry of Health Act if he will not include it in the statute.
That's really all I have to say, Mr Chairman.
The Chair: Mrs Johns, can the government support this proposed amendment?
Mrs Johns: The government is opposed to the amendment.
Mrs Caplan: The whole thing?
The Chair: Is there anything else?
Mrs Caplan: Could I ask a question of the parliamentary assistant?
The Chair: A political question or a clarification question?
Mrs Caplan: I think it's a question of why they are objecting to including an education mandate.
The Chair: We discussed this before, Mrs Caplan.
Mrs Caplan: I can ask the question.
The Chair: No, no, but I mean --
Mrs Caplan: She is there answering. She's the political representative of the minister. That is a legitimate question, why they made the decision to not support an education mandate.
The Chair: If she intends to answer it. It will be up to her.
Mrs Johns: Why we're rejecting the first part is that the board can educate. It doesn't need this mandate, as you suggested, to be able to educate. We believe it's overly bureaucratic, both sections 1 and 2 of this. I also had them search the Australian model to find out some information about it and we couldn't find any pros or cons to the Australian model. So from that standpoint, having just assessed this, looked at it, I believe it's overly bureaucratic.
Mrs Caplan: Before I yield the floor I'd like to just read again the one part, the education mandate, and ask what's bureaucratic about it: "The board shall inform and educate the public with regard to issues related to the various matters that can be the subject of an application to the board and how these matters are determined."
Mrs Johns: The board can educate and doesn't need to have any special powers to be able to educate. They do some education now.
Mrs Caplan: It's not a question of powers, it's a question of mandate. I would say to the parliamentary assistant and to the minister that no one at this time has a mandate. One of the things we have heard from every inquest over the last decade has been that someone must have an education mandate and that the most appropriate place for that -- this comes from the inquests -- was the Psychiatric Review Board, now it is the Consent and Capacity Board -- it was the Consent and Capacity Review Board. Every coroner's inquest said, "Give the board a mandate to share its information and to educate." There's nothing bureaucratic about that simple statement that gives them a mandate. I'm terribly frustrated about this.
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Mr Michael Brown: I'm compelled to wade into this discussion on the side of my colleague Mrs Caplan. We heard at this committee the chair of the Consent and Capacity Board tell us that it was necessary for education and tell us that they were prepared to do it in a broader sense than they had been doing it. I think what Mrs Caplan's saying and what we're saying as Liberals is that the mandate is important here. You may say, "Yes, sure, they could do it anyway or we could do that." The difference is that that's something that can be changed by, "Well, the Treasurer or the Minister of Finance didn't send us down enough dollars this year," or a new government can change its view.
What we're saying is that the Legislature of Ontario, the Parliament of Ontario believes this is important: "This should be done, Minister. This isn't at your discretion to decide. It isn't at the discretion of the Chair to decide. It is something the Legislature and the people of Ontario believe has to happen. There is no option." That is something that is quite different, in effect.
I am having some difficulty understanding what objection the government could conceivably have to providing them with this mandate so we could assure the constituents I represent, whom we all represent around here, that this is going to happen. It is a part of the legislative function that we direct the executive to do some things. That's all we're asking here. It doesn't seem to be an unreasonable request.
The Chair: Thank you, Mr Brown. Is there any other comment before I put the question?
All those in favour of the motion?
Mrs Caplan: The first part of the motion, please. I asked that it be split.
The Chair: I'm sorry, that would take unanimous consent.
Mrs Caplan: Is there unanimous consent to let it be split?
The Chair: No.
Mrs Caplan: Why not?
Mrs Boyd: Could we have a recorded vote, Mr Chair?
The Chair: There was not unanimous consent. We have a recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
NAYS
Doyle, Guzzo, Johns, Ron Johnson, Klees, Leadston, Parker, Tilson.
Clerk of the Committee (Ms Donna Bryce): That's defeated.
Mrs Caplan: I'd like to move another motion.
The Chair: We have Mrs Boyd's motion next.
Mrs Caplan: Actually, as I file it with the clerk and it would go in order, it's identical to the first one but it is just the top, part one, so we can vote on that separately, which is the pure education mandate.
The Chair: I'll need to get an opinion from legislative counsel. It seems that's all right.
Mrs Caplan: I'll go ahead and read it, thank you.
I move that schedule A to the bill be amended by adding the following section:
"Additional duties of the board
"79.1(1) The board shall inform and educate the public with regard to issues related to the various matters that can be the subject of an application to the board and how those matters are determined."
This is the pure education mandate. It's not encumbered by requirement for committees that the parliamentary assistant and the minister believe are bureaucratic. All this says is that the Consent and Capacity Board has a mandate. It doesn't require the government to give them any money to do it. The allocation of resources is entirely within the government's mandate, and determination as to how much they're going to give them, so this doesn't have to cost anything. All it says is that they have a responsibility. Somebody will have a responsibility, a mandate to give information and share with the public their experience with this legislation and educate. It's what we heard from everybody. It costs you nothing.
I have to tell you, Mr Chairman, I'm surprised that you would have any difficulty with supporting a simple and pure mandate that every coroner's inquest in this province has said: "Give an education mandate. Education is important and critical." Presentations that came before this committee, one after another after another said the problem is that there's no education. Mr Marchese, you can read out the record.
The Chair: I'm sure he will.
Mrs Caplan: I don't understand why you would have an objection to the board having a formal mandate to educate, to share its information. It costs you nothing to do this.
Mr Grandmaître: Just say yes.
Mr Marchese: I just want to support Mrs Caplan. It is true that many of the people who came in front of this committee said, "Please don't do this without providing some education to the public." Many of us agreed with that and said that we, as governments, all make mistakes. We've done it, I'm sure that the Liberal government's done it before and you're about to do it as well. So the point of it is, if you spend some time to educate the public with respect to a number of issues, you are in the end saving money and you're saving yourself as well. You look good as a government because you've given them information that they need, that they want.
Mr Tilson, you can make the same mistakes we did, that's all right, and we continue over and over again. You have people coming in front of our committee saying: "Please educate us on this. The public needs this. Nurses need this. Doctors need this. Patients needs this. Consumers need this." That's okay, you can refuse them as well, and we go around in cycles committing the same errors. If you want to do the same thing, Mr Tilson and Mrs Johns, you continue to do that, but we think you're wrong. This is a reasonable suggestion that Mrs Caplan is putting forward, and we'll be supporting it.
Mr Klees: Perhaps I've missed something in the course of discussions and I apologize if I have. What is the implication here if this amendment is approved that you're objecting to?
Mrs Johns: What happens at this time is that the board is able to make these decisions. It has the power to do this, as it stands right now. We don't need to put this into legislation.
Mrs Boyd: It's not required to.
Mrs Caplan: It's not part of its duties.
Mrs Johns: It has the ability to do it, though.
Interjection: Then let them do it. They're not going to do it.
Mr Tilson: They are doing it right now. Mrs Johns: They are doing it.
The Chair: Excuse me. Mr Klees has the floor.
Mr Klees: Just for clarification, what I'm hearing is that the board is doing this now. The rationale of the government is that the board is doing this as a matter of course now, so there's no reason for it to be legislated. Is that correct?
Mrs Johns: Correct.
Mr Klees: Thank you very much.
Mrs Boyd: They are doing it now but they also came in front of us talking about how their mandate under this bill has increased dramatically and their resources have not. The issue is, if they're not required to do this as part of their mandate, it will fall to the budget axe, like so many other things, and we all know that's true. Let's not play around.
When something is not in an agency's mandate -- you're the government that is talking about core services all the time, and we all the policy reports that urge you to define "core" as mandated services only. You may be naïve, but we're not. They may do it now, but as their resources get tighter and tighter and with their mandate in terms of the 22 sections they now have to do things, they will not be doing it in the future unless you increase their resources. They know it, we know it and the vulnerable public out there knows it.
The Chair: It's 5 o'clock. We either can have a vote or we adjourn, whichever you prefer.
Mr Marchese: Let's vote.
The Chair: We might as well get it out of the way.
Mr Marchese: Recorded vote.
Ayes
Boyd, Michael Brown, Caplan, Grandmaître, Marchese.
NAYS
Doyle, Guzzo, Johns, Ron Johnson, Klees, Leadston, Parker, Tilson.
The Chair: That's defeated. Thank you. We're adjourned till 10 o'clock tomorrow morning.
The committee adjourned at 1659.