CONTENTS
Wednesday 24 March 1993
Long Term Care Statute Law Amendment Act, 1993, Bill 101
STANDING COMMITTEE ON SOCIAL DEVELOPMENT
*Chair / Président: Beer, Charles (York North/-Nord L)
Présidente suppléante: Vice-Chair / Vice-Président: Daigeler, Hans (Nepean L)
Drainville, Dennis (Victoria-Haliburton ND)
*Fawcett, Joan M. (Northumberland L)
Martin, Tony (Sault Ste Marie ND)
Mathyssen, Irene (Middlesex ND)
*O'Neill, Yvonne (Ottawa-Rideau L)
*Owens, Stephen (Scarborough Centre ND)
White, Drummond (Durham Centre ND)
Wilson, Gary (Kingston and The Islands/Kingston et Les Îles ND)
*Wilson, Jim (Simcoe West/-Ouest PC)
Witmer, Elizabeth (Waterloo North/-Nord PC)
*In attendance / présents
Substitutions present / Membres remplaçants présents:
Hope, Randy R. (Chatham-Kent ND) for Mr Martin
Jackson, Cameron (Burlington South/-Sud PC) for Mrs Witmer
Jamison, Norm (Norfolk ND) for Mr Drainville
O'Connor, Larry (Durham-York ND) for Mr Gary Wilson
Perruzza, Anthony (Downsview ND) for Mr Drainville
Sullivan, Barbara (Halton Centre L) for Mr Daigeler
Wessenger, Paul (Simcoe Centre ND) for Mrs Mathyssen
Wiseman, Jim (Durham West/-Ouest ND) for Mr White
Also taking part / Autres participants et participantes:
Czukar, Gail, legal counsel, Ministry of Health
Quirt, Geoffrey, acting executive director, joint long term care division, Ministry of Health and Ministry of Community and Social Services
Wessenger, Paul, parliamentary assistant to the Minister of Health
Clerk / Greffier: Arnott, Douglas
Staff / Personnel:
Gottheil, Joanne, legislative counsel
Spakowski, Mark, legislative counsel
The committee met at 0934 in room 151.
LONG TERM CARE STATUTE LAW AMENDMENT ACT, 1993 / LOI DE 1993 MODIFIANT DES LOIS EN CE QUI CONCERNE LES SOINS DE LONGUE DURÉE
Consideration of Bill 101, An Act to amend certain Acts concerning Long Term Care / Loi modifiant certaines lois en ce qui concerne les soins de longue durée.
The Chair (Mr Charles Beer): Good morning, ladies and gentlemen. Welcome again to the meeting of the standing committee on social development. We are doing clause-by-clause on Bill 101, An Act to amend certain Acts concerning Long Term Care, and we'll begin this morning with Ms Sullivan and an amendment to section 5 of the bill.
Mrs Barbara Sullivan (Halton Centre): My motion is with respect to section 9.7.1 of the act.
I move that section 5 of the bill be amended by adding the following section to the Charitable Institutions Act after section 9.7:
"Notice of determination to person seeking admission
"9.7.1(1) A placement coordinator who determines that a person's admission to an approved charitable home for the aged should not be authorized shall serve a notice of the determination on the person.
"Applicable provisions
"(2) Subsections 9.7(2), (3), (4) and (6) apply, with necessary modifications, with respect to a notice of determination under subsection (1).
"Hearing by appeal board
"(3) A person who is served with a notice of determination is entitled to a hearing by the appeal board if the person mails or delivers to the placement coordinator and to the appeal board, within thirty days after the notice of determination is served, a notice requiring a hearing.
"Applicable provisions
"(4) Subsections 9.8(1), (2), (3) and (5) apply, with necessary modifications, with respect to a hearing requested by a person under subsection (3).
"Powers of appeal board
"(5) After a hearing by the appeal board, the appeal board may,
"(a) affirm the determination made by the placement coordinator;
"(b) rescind the determination made by the placement coordinator and refer the matter back to the placement coordinator for redetermination in accordance with such directions as the appeal board considers proper; or
"(c) rescind the determination made by the placement coordinator, substitute its opinion for the opinion of the placement coordinator and direct the placement coordinator to authorize the person's admission to the approved charitable home for the aged."
The intent of this motion is to allow an applicant the right of appeal on the placement coordinator's determination that the person should be authorized to be admitted to a home. It is an add-on to the entitlement to appeal on eligibility.
Mr Paul Wessenger (Simcoe Centre): This is with respect to appeal, if I understand this. I have some difficulty understanding this motion because it appears to indicate -- the role, it seems, of a placement coordinator in the act is to determine eligibility, not to determine that a person -- that is covered in the previous section, as far as I can see, 9.7, which indicates a right of appeal when there's a determination respecting eligibility. For that reason, I don't see the purpose of this, and we'll be voting against it.
The Chair: Thank you. Shall the motion by Ms Sullivan carry? All in favour? Opposed? The motion is defeated.
Mr Jim Wilson (Simcoe West): I move that section 5 of the bill be amended by adding the following section to the Charitable Institutions Act after section 9.7.
"Discharge for transfer
"9.7.1(1) An approved corporation maintaining and operating an approved charitable home for the aged may apply, in accordance with the regulations, to the placement coordinator designated for the home for authorization to discharge a resident for transfer to an appropriate alternative setting if the care requirements of the resident cannot be met in the home.
"Determination
"(2) The placement coordinator to whom an application under subsection (1) is made shall determine whether the resident's care requirements can be met in the home.
"Authorization
"(3) If the placement coordinator determines that the care requirements cannot be met, the placement coordinator shall authorize the applicant to discharge the resident and shall advise the applicant on an appropriate alternative setting for the resident.
"Discharge
"(4) An applicant may discharge a resident of an approved charitable home for the aged when so authorized by a placement coordinator.
"Notice of determination
"(5) The placement coordinator shall serve notice on the applicant if the placement coordinator determines that the resident's care requirements can be met in the home and determines not to authorize the resident's discharge, and subsections 9.7(2) to (7) apply with necessary modifications."
With this amendment, the duties of the placement coordinator will be expanded in order to ensure that an applicant's authorization of admission does not become the final task of the placement coordinator. Repeatedly, this committee has been told that the condition and needs of the elderly, for instance, can change radically and rapidly. Bill 101 fails to address the issue of what happens to a resident once the current home is no longer capable of meeting his or her needs. Instead of closing the file on an applicant once he or she has been placed in a facility, the placement coordinator should be required to follow through when the situation deems it necessary to re-examine his or her placement in the home. This role, which cannot simply be ignored by the government, in my opinion, must be filled.
I propose that placement coordinators be required to fill this role. They are the natural choice since they will already be charged with the duty of determining eligibility and authorizing admission into a facility, and it follows that they should be the ones to seek out alternatives when arrangements are no longer suitable.
Mr Wessenger: We'll be voting against this motion because it is contrary to the scheme of the existing situation, where basically the onus is to find the alternative and then to get the -- the way the process is to work is that where there is an inappropriate setting, an application will be made to an appropriate setting and then, once that appropriate setting is available, the applicant moved. We don't want to have persons left in limbo with a discharge provision.
Mr Jim Wilson: Just to be clear, perhaps the parliamentary assistant would want to place on the record what the process will be then if the resident of a home finds that the home no longer meets his or her needs and requirements. It would be my understanding that without this amendment, the process would be that the administrator of the home or someone at the home or the resident himself would apply for a transfer, apply back to the placement coordinator. Would that be the case?
Mr Wessenger: I will ask ministry staff, actually, because I think this is an area where they can provide more detailed answers.
Mr Geoffrey Quirt: Thank you. Geoff Quirt, acting executive director of the long-term care division.
If it's determined in developing the care plan or reviewing the care plan for a resident in a long-term care facility, with the involvement of the multidisciplinary team in the facility and with the required involvement of the resident himself or herself or his or her family members, that the appropriate type of service required by the resident can no longer be provided in the facility, then an application could be made, and would be made, with the applicant's consent, or the family's consent, to another long-term care facility in the area, for example, one with a secure unit if someone's behaviour, as the result of a cognitive impairment, indicated that this would be a better placement. Then the placement coordinator would be obliged to determine the priority of that person's application for the facility of his or her choice and make sure she or he had a fair shot at getting into that alternative facility.
If care in a hospital setting, for example, was indicated, then a placement coordinator could be called upon to make a referral, or the physician involved in the care planning of the individual could make a referral through a chronic hospital, and if a bed were available, the physician could admit the client to a chronic hospital or make a referral to another institutional setting specific to that client's needs.
We feel the placement coordination service will play a role in the way you've described, but we don't see the placement coordinator involved in declaring someone no longer appropriate for that facility. We would rather see a collaborative approach to determining the care requirements of the individual, without the threat of being declared no longer appropriate and with the insecurity of not having a future in that particular facility or another one that would meet their needs.
The Chair: Thank you. Shall the motion moved by Mr Wilson carry? All those in favour? Opposed? It is defeated.
The next motion is Mrs Sullivan.
Mrs Sullivan: I believe this motion responds to the exact comments of the parliamentary secretary.
I move that section 5 of the bill be amended by adding the following sections to the Charitable Institutions Act, after section 9.7.1:
"Discharge for transfer
"9.7.2(1) An approved corporation maintaining and operating an approved charitable home for the aged may apply, in accordance with the regulations, to the placement coordinator designated for the home for authorization to discharge a resident for transfer to an appropriate alternative setting if the care requirements of the resident cannot be met in the home.
"Notice to resident
"(2) The applicant shall give notice of the application to the resident.
"Determination
"(3) The placement coordinator to whom an application under subsection (1) is made shall determine whether the resident's care requirements can be met in the home.
"Authorization
"(4) If the placement coordinator determines that the care requirements cannot be met, the placement coordinator shall authorize the applicant to discharge the resident and shall advise the resident on an appropriate alternative setting for the resident.
"Discharge
"(5) An applicant may discharge a resident of an approved charitable home for the aged when so authorized by a placement coordinator if an appropriate alternative setting for the resident is available and transfer to that setting is consented to by the resident or person authorized to consent on behalf of the resident.
"Notice of determination
"(6) The placement coordinator shall serve a notice on the applicant if the placement coordinator determines that the resident's care requirements can be met in the home and determines not to authorize the resident's discharge.
"Applicable provisions
"(7) Subsections 9.7(2), (3), (4) and (6) apply, with necessary modifications, with respect to a notice of determination under subsection (6).
"Hearing by appeal board (discharge)
"9.7.3(1) An approved corporation that is served with a notice of determination under subsection 9.7.2(6) is entitled to a hearing by the appeal board if the approved corporation mails or delivers to the placement coordinator and to the appeal board, within 30 days after the notice of determination is served, a notice requiring a hearing.
"Applicable provisions
"(2) Subsections 9.8(1), (2), (3) and (5) apply, with necessary modifications, with respect to a hearing required by an approved corporation under subsection (1).
"Powers of appeal board
"(3) After a hearing by the appeal board, the appeal board may,
"(a) affirm the determination made by the placement coordinator;
"(b) rescind the determination made by the placement coordinator and refer the matter back to the placement coordinator for redetermination in accordance with such directions as the appeal board considers proper; or
"(c) rescind the determination made by the placement coordinator, substitute its opinion for the opinion of the placement coordinator and direct the placement coordinator to authorize the resident's discharge."
Mr Chairman, as is very clear, there is concern about what will happen to a resident when the care requirements can no longer be met at the facility and the facility believes that to be the case.
This motion is similar to the motion of the third party; however, improves upon it, in my view, in several areas. First of all, the resident is notified that the nursing home or the home for the aged would be making an application for transfer. Secondly, the transfer could only occur if an alternative setting is available and ready to accept and able to accept the person, and there is a hearing allowed before the appeal board of the application if the placement coordinator says that a transfer is not appropriate.
The Chair: Parliamentary assistant.
Mr Wessenger: We'll not be supporting this amendment because again, if I might refer, it introduces the concept of the appeal process, which we want to deal with in phase 2.
The Chair: Shall the motion moved by Ms Sullivan carry? All in favour? Opposed? The motion is defeated.
The next amendment is a government motion on subsections 9.8(1) and (2).
Mr Wessenger: I move that subsections 9.8(1) and (2) of the Charitable Institutions Act, as set out in section 5 of the bill, be struck out and the following substituted:
"Hearing
"9.8(1) When the appeal board receives an application for a review of a determination of ineligibility, it shall promptly appoint a time and place for a hearing.
"Same
"(2) The hearing shall begin within twenty-one days after the day the appeal board receives the application for the hearing, unless the parties agree to a postponement.
"Notice to parties
"(2.1) The appeal board shall notify each of the parties of the time and place of the hearing at least seven days before the hearing begins.
"Parties
"(2.2) The parties to the proceeding before the appeal board are the applicant who was determined to be ineligible for admission, the placement coordinator who made the determination and such other parties as the appeal board specifies.
"Notice to minister
"(2.3) When a placement coordinator is notified by the appeal board of a hearing, the placement coordinator shall promptly give the minister written notice of the hearing together with written reasons for the determination of ineligibility made by the placement coordinator.
"Minister entitled to be heard
"(2.4) The minister is entitled to be heard by counsel or otherwise in a proceeding before the appeal board under this section."
This amendment again simplifies the hearing parties and notice provisions and also requires the appeal board to notify parties at least seven days before the hearing and requires the hearing to begin within 21 days. Again, it's to simplify the process and to expedite it.
Mrs Sullivan: What is the difference between the yellow page and the white page?
Mr Wessenger: I'll ask counsel.
Ms Gail Czukar: It's a drafting issue. I think legislative counsel might be able to explain what the difference was between our original tabled motion and this one. It's a small drafting change of some sort.
Ms Joanne Gottheil: In section 9.8(2) the words "unless the parties agree to a postponement" were added to give the parties that right. In subsection (2.1) it had said "before the hearing," and we just said "before the hearing begins." Those were the only changes.
The Chair: Shall the government motion carry? All in favour? Carried.
The next motion is a Conservative motion. Mr Wilson.
Mr Jim Wilson: I won't be introducing this motion as the government motion incorporates in it a time frame for the hearing of the appeal. I see some strange looks from counsel. Was I correct in my comments on that?
Mr Wessenger: Yes, you were correct.
Mr Jim Wilson: I was proposing 90 days and you proposed 21, and I think 21 is preferable.
The Chair: We'll simply learn from that. Strange looks do not necessarily mean --
Interjections.
The Chair: Order. We'll move to the government motion on subsection 9.8(3).
Mr Wessenger: I move that subsection 9.8(3) of the Charitable Institutions Act, as set out in section 5 of the bill, be struck out and the following substituted:
"Quorum of appeal board
"(3) Three members of the appeal board constitute a quorum and are sufficient for the exercise of the jurisdiction and powers of the appeal board under this act."
This of course changes the quorum from one to three, as requested by many presenters.
The Chair: Any comments?
Mr Jim Wilson: Just to indicate that we'll be supporting this government amendment. I know many witnesses appeared before the committee feeling that a quorum of one was insufficient. Arguments have also been made that perhaps a quorum of three may slow down the process of the appeal board. I'd just like to take this opportunity to ask the parliamentary assistant what the government envisions in terms of beefing up the staffing levels and resources of the appeal board so that we not only get rid of the backlog that faces the board now but it's also able to take on the new challenges presented to it through this legislation.
Mr Wessenger: I'd be happy to respond to that. In fairness, I think this is an aspect by which we are looking to respond to the presenters, but I would agree that it's a very mixed situation, because by establishing a quorum of three you may not make the process as simple as it might otherwise be with a hearing by one person. I'll be quite honest about this item, that I'd be quite prepared to let everybody look at it individually and make their own decision on this particular item. If it's the consensus of the committee that --
Interjections.
Mrs Sullivan: Free vote.
Mr Jim Wilson: He's telling his own members, "You can do whatever you want on this."
Mr Wessenger: No, I'm just --
Mr Jim Wilson: Given, Mr Wessenger, that this is the first time you've released the whip on your members, is there something here we should know about?
Mr Wessenger: I think it's fair to say it's a balance question. It's a difficult --
Mr Jim Wilson: Let me just ask you, is it the government's opinion that this will be problematic if you move to a quorum of three? Have you figured out whether you're going to have the resources throughout the province to be able to do this, or are we doing this for political reasons because a lot of groups indicated they wanted a quorum of three?
Mr Wessenger: I think it's fair to say that a quorum of three is preferable from an administrative point of view, in the sense of providing a hearing that will be less likely to be attacked and provide a more final decision. So certainly it is in my opinion preferable from that aspect. It's a question of balancing that interest, which I tend to favour, against the other interest of having a more informal, quicker process perhaps.
Mrs Yvonne O'Neill (Ottawa-Rideau): I have considerations on this matter too. I'm comparing it to the Social Assistance Review Board, where there is a quorum of one, and we haven't had a lot of pressure to change that. It's an area, too, where there is a lot of demand for hearings. This could delay things considerably for individuals who are in a vulnerable position.
It also is going to really increase the costs in a province like Ontario to have a quorum of three. It may not always be that three people are in the same city in this province. I think it is a political move. I think that if the regulations are very clear, if the criteria from ministry are very precise regarding decisions and precedents, and decisions are set up -- and there are already some precedents in this area in this province -- I think a quorum of one is quite defensible.
The Chair: I think the arguments have been made and --
Mr Wessenger: It's a free vote.
Interjections.
The Chair: Order. Ladies and gentlemen of the committee, as the Chair, I must remind you that we have a good number of amendments to deal with today. While I appreciate the bonhomie that reigns, we really must push on.
Shall the motion put by the parliamentary assistant carry? All those in favour? Seven. All those opposed? Three. So the motion carries.
The next motion is a Liberal motion.
Mrs Sullivan: There's a government motion before my own, which is exactly the same as my own.
The Chair: I'm sorry, I'm working from two lists. You're quite right: A government motion is first.
Mr Wessenger: I move that subsection 9.8(4) of the Charitable Institutions Act, as set out in section 5 of the bill, be struck out.
The Chair: Shall the motion carry? Carried.
I believe I am finally at Ms Sullivan.
Mrs Sullivan: Mr Chairman, my motion was exactly the same as the government's, so I will not be putting it forward.
1000
The Chair: Okay. Mr Wilson, I believe yours is --
Mr Jim Wilson: My motion is exactly the same, too. May I just add the comment that the reasons, I believe, for all three parties having the same motion is that we felt it was unnecessary and discriminatory to limit the number of physicians who can sit on the appeal board. For this reason, I think the parties agreed to support the government motion.
The Chair: Thank you. Next is a government motion. Mr Wessenger.
Mr Wessenger: I move that section 9.8 of the Charitable Institutions Act, as set out in section 5 of the bill, be amended by adding the following subsections after subsection (5):
"Evidence of disabled person
"(5.1) If a party to a proceeding before the appeal board under this act wishes to give evidence in the proceeding or wishes to call another person as a witness to give evidence in the proceeding but the party or other person is unable to attend the hearing by reason of age, infirmity or physical disability, the appeal board members holding the hearing may, at the request of the party, attend upon the party or the other person, as the case may be, and take his or her evidence.
"Medical report proves inability
"(5.2) A medical report signed by a legally qualified medical practitioner stating that the practitioner believes that the person is unable to attend the hearing by reason of age, infirmity or physical disability is proof, in the absence of evidence to the contrary, of the inability of the person to attend the hearing.
"Opportunity for all parties
"(5.3) No appeal board member shall take evidence from a party or other person under subsection (5.1) unless reasonable notice of the time and place for taking the evidence is given to all parties to the proceeding and each party attending is given an opportunity to examine or cross-examine the party or other person, as the case may be.
"Recording of evidence
"(5.4) The oral evidence taken before the appeal board at a hearing and the oral evidence taken from a party or other person under subsection (5.1) shall be recorded and, if required, copies of a transcript of the evidence shall be furnished on the same terms as in the Ontario Court (General Division)."
This amendment permits elderly, infirm or physically disabled persons or witnesses to give evidence without having to attend the hearing. As well, it provides that oral evidence is to be recorded. This is really to provide a fairer hearing process, particularly for the infirm.
The Chair: Thank you. Shall the motion made by Mr Wessenger carry? Carried.
Mr Wessenger, yours is next.
Mr Wessenger: I move that subsection 9.8(6) of the Charitable Institutions Act, as set out in section 5 of the bill, be struck out and the following substituted:
"Health Insurance Act
"(6) Subsections 23(1), (2), (4), (5) and (6) of the Health Insurance Act apply to the proceedings and decisions of the appeal board under this act."
This amendment deals with appeal board procedure described under the Health Insurance Act. It deletes a reference to subsection 23(3) of that act regarding copying of transcripts and recording of evidence, which is not necessary because the previous motion we just passed ensures that transcripts are copied and the evidence recorded.
The Chair: Shall the motion by Mr Wessenger carry? Carried.
Mrs Sullivan, I'm not sure if yours is --
Mrs Sullivan: This motion is the same as the motion preceding it.
The Chair: Thank you. Mr Wilson, yours is next, 9.8(7).
Mr Jim Wilson: This was a housekeeping item which would have referred to a previous PC amendment to introduce an appeal opportunity and, as I said yesterday, given that you never got this house set up, I won't be introducing this housekeeping item.
The Chair: Thank you. The next is a government motion, Mr Wessenger.
Mr Wessenger: I move that section 9.8 of the Charitable Institutions Act, as set out in section 5 of the bill, be amended by adding the following subsection after subsection (7):
"Decision and reasons
"(7.1) The appeal board shall render its decision within one day after the end of the hearing and shall provide written reasons to the parties within seven days after rendering the decision."
Again, this is to ensure we have a speedy process.
Mrs Sullivan: I have some concern here that indeed this will be possible and reasonable, making a decision within a day, if the case is complicated, if the eligibility materials that have to be reviewed, by example, include substantial medical evidence and so on. I think the ministry may be overconfident in putting this forward. I like the idea of speed; I'm just not sure if this is the right speed.
Mr Jim Wilson: I just want to note that there is some inconsistency here on behalf of the government in that both the PC Party and the Liberal Party introduced many amendments to try to expand the appeal provisions in this particular section of the legislation, including the PC amendment which did refer to a similar time guideline as is now contained in the government's own motion. For that reason, I guess I have to support the government motion, but I do want to put on the record that we're still very disappointed that expanded appeal opportunities don't exist in this section.
Mrs O'Neill: I'm quite concerned about the possibility of this. We all know that it's not always possible to gather evidence and to contact people, even by telephone. These decisions, let's face it, are going to be the difficult decisions. I really don't think that in 24 hours it is possible to make any difficult decision in government. I think it's putting out a false hope that it will not be possible to meet. Putting it into legislation, in my mind, is almost ridiculous.
Mr Wessenger: I'd just like to indicate that presently under the Mental Health Act and under the new Consent to Treatment Act, which involve serious questions of mental capacity, the requirement is that the review board make a decision within one day. So I think that if we look at the similarity of cases, those cases are, if anything, more complex than the question of determining a person's level of care.
The Chair: I'll put the question, then. Shall the motion by Mr Wessenger carry? All in favour? Carried.
Next is a Conservative motion. I'm sounding quizzical because I'm trying to find it.
Mr Jim Wilson: It's subsection 9.8(6) for the Liberals.
The Chair: I'll just pause for a second here.
Mr Randy R. Hope (Chatham-Kent): I've got the Conservatives' section 9.8.1.
The Chair: You have a motion to section 9.8.1, Mr Wilson?
Mr Hope: Powers of court on appeal.
Mr Jim Wilson: Again, I won't be introducing that amendment on section 9.8.1. It's a housekeeping item which referred to a previous amendment which would have expanded the appeal process.
The Chair: Okay. I then have a Conservative amendment to section 9.10.
Mr Jim Wilson: I'm sorry, which amendment are you looking for?
The Chair: Subsections 9.10(3) to (5).
Mr Jim Wilson: I'm confused, because I have an amendment here in my pile that I guess never made it to the pile that everybody else is looking at.
The Chair: I've had a little confusion here too. Do you want to share your confusion with my confusion?
Mr Jim Wilson: Again, just to be clear, I will not be introducing the PC amendment to subsections 9.10(3) to (5).
The Chair: Okay, thank you. I then have a government amendment to section 9.12.
Mr Wessenger: I move that section 9.12 of the Charitable Institutions Act, as set out in section 5 of the bill, be amended by striking out "and" at the end of clause (c) and by adding the following clause after clause (c):
"(c.1) an opportunity to participate fully in the development and revision of the resident's plan of care is provided to the resident, to the person who is lawfully authorized to make a decision on behalf of the resident concerning the resident's personal care and to such other person as they may direct; and"
This amendment requires a home to provide residents and their substitute decision-makers with an opportunity to participate in the plan of care. It was always the intention that this be the case anyway, but this is in response to the recommendations made by the consumers. But I ask that this be stood down until the substitute decision-making amendment is accepted, because there are some provisions in that section.
1010
The Chair: Okay, so 9.12 will be stood down.
We move then to the next amendment, 9.12(d), which is a Liberal amendment.
Mrs Sullivan: I move that clause 9.12(d) of the Charitable Institutions Act, as set out in section 5 of the bill, be struck out.
This motion and the one which I will be making subsequent to it -- I can do the argumentation for both at once -- are really to indicate that the standard of demand that is being required of the home with respect to the provision of the plan of care in 9.12(d) is an impossible one in that the plan of care will not be totally provided by the home, yet the home is being required to provide, under this section, the entire plan of care. It's an impossible one. The standard is much too high.
My next motion would strike out that -- actually, probably what I should do is go on to the next motion.
The Chair: I just want to ask: You're really making changes --
Mrs Sullivan: Yes, I'm doing double duty here, aren't I?
The Chair: Would it make more sense to just remove this one?
Mrs Sullivan: Yes. I'll withdraw that, then, and move on.
I move that clause 9.12(d) of the Charitable Institutions Act, as set out in section 5 of the bill, be struck out and the following substituted:
"(d) those parts of the plan of care for which the approved corporation is responsible under the service agreement or a contract between the approved corporation and the resident is provided to the resident."
The Chair: I see some quizzical faces --
Mrs Sullivan: Yes, I know.
The Chair: -- which suggests people may not have that.
Mr Jim Wilson: I think she's added a few words on the fly.
Mrs Sullivan: No, look at the next page.
The Chair: There should have been two pages, but if you don't have that, let's make sure we get that one. Ms Sullivan, could we come back to that once we've distributed that?
Mr Jim Wilson: Mr Chairman, we do have a couple of pages of Liberal motions. One looks like version 2.
Mrs Sullivan: We had difficulty in the wording here.
Mr Jim Wilson: Maybe Ms Sullivan could just repeat the wording.
The Chair: Ms Sullivan, there were three related to 9.12(d): the one that simply struck it out, and then there are two pages we have that amend it. Which one do you --
Mrs Sullivan: It would be the second page:
"(d) the care outlined in the plan of care, for which the approved corporation is responsible for providing under the service agreement or a contract between the approved corporation and the resident and for which the approved corporation has been compensated, is provided to the resident."
The Chair: Okay, that's the one you're presenting. The other one should be removed.
Mrs Sullivan: That's right.
The Chair: Is that clear to everyone? Any discussion on Mrs Sullivan's amendment?
Mr Jim Wilson: Mr Chairman, I realize this amendment stems from discussions opposition parties had with the Ontario Nursing Home Association, and I think that we can support Mrs Sullivan's version 2 or 3 of this amendment. I like it better than her previous thoughts, which would have removed the requirement for the home to ensure that the resident is provided with the plan of care.
I think it's important that residents know their plan of care and that somebody have the actual legislated responsibility to make sure they're aware of all of that. I know the government's moved to ensure that residents are fully consulted during the making of the plan of care and I do agree with this motion, which calls upon the government to provide, I believe, compensation to the homes to ensure that they're able to carry out what's required in the amendment.
Mr Wessenger: We'll be voting against this motion, because it would relieve the home from meeting requirements. It should be indicated, however, that the plan of care is developed by the homes, so they're the ones that are setting the plan of care.
The Chair: Shall the motion by Ms Sullivan carry? All those in favour? Opposed? The motion is defeated.
Ms Sullivan, yours is the next one as well, 9.12(2). In fact the next three are yours.
Mrs Sullivan: I move that section 9.12 of the Charitable Institutions Act, as set out in section 5 of the bill, be amended by adding the following subsections:
"Resident's participation in developing plan
"(2) A plan of care for a resident shall not be developed or revised without the participation of the resident or another person authorized to act on the resident's behalf.
"Resident's consent in implementing plan
"(3) A plan of care for a resident shall not be implemented without the consent of the resident or another person authorized to consent on the resident's behalf."
The motion is straightforward and would require involvement in the development of the plan and consent to its implementation.
Mr Wessenger: I will be voting against this because it appears to be covered by the amendment that we have already moved, 9.12.
Mrs Sullivan: Yours is stood down as I recall.
Mr Wessenger: It is stood down, but it will be --
Mrs Sullivan: Should we stand down this one to be certain that the points are included?
The Chair: You'll have to stand it down, Mrs Sullivan. So this is also deferred. We'll then move on to the next amendment which is also yours.
Mrs Sullivan: I move that section 5 of the bill be amended by adding the following section to the Charitable Institutions Act after section 9.12:
"Immunity for employees
"9.12.1 No proceeding for damages shall be commenced against an employee of an approved charitable home for the aged for any act done in good faith in the performance or intended performance of the person's duty or for any alleged neglect or default in the performance in good faith of the person's duty."
We felt this was an important amendment to include, given the immunity provisions, even with the changes surrounding the placement coordinator.
Mr Wessenger: We'll be voting against this motion for the simple reason it would, I think, open a Pandora's box with the whole question of all employees in health facilities, because in the Public Hospitals Act, employees are personally liable to provide a different situation within a long-term care facility. To my way of thinking, it does not make sense.
The Chair: Shall Ms Sullivan's motion carry?
Mr Cameron Jackson (Burlington South): Could we have a recorded vote on this?
The Chair: A recorded vote?
Mr Jackson: Please.
The Chair: I'm going to call for a recorded vote and we will do so. Shall the motion made by Ms Sullivan carry? All those in favour?
Ayes
Jackson, O'Neill (Ottawa-Rideau), Sullivan, Wilson (Simcoe West).
The Chair: All those opposed?
Nays
Hope, O'Connor, Owens, Wessenger, Wiseman.
The Chair: The motion is defeated.
I now call the government motion on 9.13.
Mr Wessenger: I move that section 9.13 of the Charitable Institutions Act, as set out in section 5 of the bill, be struck out and the following substituted:
"Quality management
"9.13 An approved corporation maintaining and operating an approved charitable home for the aged shall ensure that a quality management system is developed and implemented for monitoring, evaluating and improving the quality of the accommodation, care, services, programs and goods provided to the residents of the home."
This is in response to the many representations that "quality assurance" was inappropriate language.
Mr Jim Wilson: I just want to make a few comments on the amendment and about quality assurance versus quality management. I think Bill 101, without this amendment, simply required each home to develop quality assurance programs.
Quality assurance is a management approach. Studies have argued that quality assurance does not improve the quality of care for a patient in a hospital, the studies that refer to the hospital sector. Instead, some hospitals use a total quality management approach, which has been proven to improve patient care.
1020
As the parliamentary assistant has indicated, several groups have told this committee that a quality assurance approach is outdated and conflicts with other management processes used in hospitals and nursing homes, and certainly our caucus believes that the most generic wording should be used in the legislation in order that facilities are continually improving the quality of service they provide.
Having said that, I want specifically to ask the parliamentary assistant whether he feels it is necessary to restrict the term "quality management," because in his amendment, after the word "implemented" in the third line, they go on to restrict quality management by inserting "for monitoring, evaluating and improving the quality of the accommodation, care, services, programs and goods provided to the residents of the home."
I just wondered if the government would accept a friendly amendment -- and I'm just feeling out the government at this point, Mr Chairman -- that after the word "implemented" we simply put, "implemented for the home," and not have the extra language, which I feel somewhat restricts the term "quality management," because I'm told by experts in this field that when they see the term "quality management," they know what it means and that it's not necessary to put any additional restrictions or commentary on that term, as the government's amendment would do.
The Chair: Parliamentary assistant, would you comment on that?
Mr Wessenger: I would suggest that by adding in the words, we particularly direct the intention of the legislation towards the quality of what is delivered, and I think it's important that that be set out in the description. It also makes it, in my opinion, more generic.
The Chair: Shall the motion made by Mr Wessenger carry? All in favour? Opposed? Carried.
The next motion is a Liberal motion.
Mrs Sullivan: Mr Chairman, my motion is now redundant.
The Chair: Thank you. The next motion is a Conservative motion. Mr Wilson.
Mr Jim Wilson: It's the same and it would be redundant. I do want to emphasize, though, that I think the government's motion, although we had to support it because it's the only one that was going to be passed today, is not our first choice.
The Chair: The next motion is also your motion, Mr Wilson.
Mr Jim Wilson: Again, Mr Chairman, I won't be introducing that.
The Chair: Right, thank you. I believe it's the government motion that's next, to section 9.14. Mr Wessenger, please.
Mr Wessenger: I move that section 9.14 of the Charitable Institutions Act, as set out in section 5 of the bill, be struck out and the following substituted:
"Notice to residents
"9.14(1) An approved corporation maintaining and operating an approved charitable home for the aged shall give to each resident of the home, to the person who is lawfully authorized to make a decision on behalf of the resident concerning the resident's personal care and to such other person as they may direct, a written notice,
"(a) setting out the rights of the resident under subsection 3.1(2) and stating that the approved corporation is obliged to respect and promote those rights;
"(b) describing the accommodation, care, services, programs and goods that the approved corporation is required to provide or offer under this act and under the service agreement relating to the home;
"(c) stating that the resident, the person who is lawfully authorized to make a decision on behalf of the resident concerning the resident's personal care or such other person as they may direct may request access to and an explanation of the resident's plan of care, and specifying the person to whom such a request must be made;
"(d) setting out the procedures for making complaints about the maintenance or operation of the home, the conduct of the staff of the home or the treatment or care received by the resident in the home; and
"(e) setting out such other matters as are prescribed by the regulations.
"Obligations re plan of care
"(2) If a request is made in accordance with clause (1)(c), the approved corporation shall ensure that access to and an explanation of the plan of care is provided to the person who made the request."
This amendment adds a requirement that the person who's lawfully authorized to make a decision on behalf of the resident concerning the resident's personal care should receive notice of the terms set out in this section, in addition to the resident. As well, it adds the bill of rights to the list of items which the approved corporation must provide notice of.
This again should be stood down until the substitute decision-making amendment is accepted.
The Chair: This will be deferred. Mr Wilson?
Mr Jim Wilson: To save a little time, the PC motion 9.14(1)(a), which I believe would be the next motion, also should be stood down because it's an amendment to part (a) of that.
The Chair: Okay, so we are deferring 9.14 and 9.14(1)(a), but we'll just hold for one moment. As the clerk quite rightly points out, would you please read it and move it.
Mr Jim Wilson: I move that clause 9.14(1)(a) of the Charitable Institutions Act, as set out in section 5 of the bill, be struck out and the following substituted:
"(a) the rights and obligations of the resident and of the approved corporation."
Perhaps I may just comment, because I think while it's stood down, the parliamentary assistant may want to consider these comments and why I think part (1)(a) of the government's motion should take into account my amendment. I think what the PC amendment attempts to do, in the addition of this wording, is to ensure that the relationship between residents and operators is a more balanced one. Currently under the bill, I believe this relationship is one-sided. The service agreement and plan of care are intended to make the operator live up to his or her end of the agreement, while nothing is provided to ensure residents comply with their end of the deal.
I'd ask the parliamentary assistant to take this amendment under consideration. What it attempts to do is to state in the legislation that not only should the rights and obligations of the resident be fully respected but also those of the corporation.
The Chair: Thank you. That will also be stood down. I'm sure the parliamentary assistant will consider your remarks when it is stood back up. That's probably grammatically incorrect, but none the less.
Mr Jim Wilson: You're doing very well, Mr Chair.
The Chair: We now move to 9.15.
Mr Wessenger: I move that section 9.15 of the Charitable Institutions Act, as set out in section 5 of the bill, be amended by:
(i) renumbering clause (a) as clause (a.1) and adding the following clause:
"(a) a copy of section 3.1"; and
(ii) adding the following clause after clause (a.1):
"(a.2) a copy of the most recent inspection report relating to the home received by the approved corporation under subsection 10.1(15)."
This amendment requires that an approved corporation post the section of the act concerning the bill of rights as well, just as they will be required to post recent inspection reports.
Mr Jim Wilson: Committee members may want to refer to both the Liberal and PC motions in this regard. It's difficult to talk about the government motion without talking about our own. Essentially, what I'd like to see changed in this section, in dealing with the posting of all of the documents that the government, through this legislation, is requiring to be posted in the home -- what the PC motion attempts to do is to say that, yes, it's important, the principle regarding the posting of information such as service agreements, financial statements and other documents is a good principle.
But I think it overlooks a very important fact, which is that these facilities are residents' homes. I think the government may have lost sight of this in its attempt to ensure that advocacy is easily provided and easily carried out on behalf of residents, that residents themselves can easily find information about their homes and that their loved ones and families can easily obtain information and documents about the homes. I just find it somewhat unnecessary and perhaps really not the best way to proceed by having all of this documentation posted as you walk in the front door of someone's home.
1030
The PC amendment, and I think the Liberal amendment, says it's important that this information be available and that there not be any barriers to obtaining this information and documentation, but that it would be better that a sign be posted in the front lobby, as it were, indicating that all this information is available during posted hours at the office or nursing station. That is the intent of my amendment.
I'd like the government to comment on that, because what the government amendment that we're speaking to right now does is to require that even more information be posted on the bulletin board, as it were. I wonder if they'd consider the fact that this is someone's home.
The Chair: Just before calling on the parliamentary assistant, Mrs Sullivan, do you wish to comment, because you also have a similar amendment?
Mrs Sullivan: Yes, I do. The amendment we have proposed would require that information is available in a prominent place. In my view, that ought not to be the nursing station or the manager's office, but ought to be a place where the residents have independent access.
None the less, I concur with the view of the Ontario Nursing Home Association and the representatives of charitable homes who that their places are going to begin to look like a cluttered kindergarten room, with things on walls everywhere and no appropriate place for people to review properly the documents to which we want them to have full access.
The posting issue is one issue. The second issue is that the documentation should be available in a central location, which the residents should have unimpeded access to.
Thirdly, I think the government's approach is to list every document in the legislation that ought to be posted. It seems to me there ought to be another method whereby other information which the ministry may from time to time want to make available should be included in the regs. The government amendment does not allow for that, whereas the amendment that the Liberal Party is putting forward does.
Mr Wessenger: I just want to comment. The existing provisions that are being amended do provide that other documents may be required to be posted by regulation. As far as the prominent place thing is concerned, I know it just says to post it in the home in our provisions. But I'm certain it will be dealt with by regulation as to ensuring it is posted in a prominent place.
With respect to the Conservative amendment, we certainly would be concerned that just posting a right to inspect would not be an effective way of people having access to information, particularly those people who would be with the frail elderly.
Mrs Sullivan: I wonder if the government would consider a redraft to change the word "post" and substitute that word with words that would ensure independent access by the resident to materials that were located in a "common area or prominent place," in the words that were recommended to us? "Post" has a legal meaning, I'm told by counsel, that means it must be on the wall.
Mr Jim Wilson: Just following on what the parliamentary assistant has said, I think operators of homes for the aged and nursing homes and charitable homes -- because we all have similar amendments to those acts to be presented later -- try to make their facilities look like homes. Even now there's a certain amount of posting that has to go on. I find when I visit homes in my riding, residents get overly anxious about some of the stuff that's posted.
For instance, I was in a home before Christmas where a couple of residents were very concerned about a posting of an infringement of a fire regulation. The legal wording in that document had me worried until somebody expert in the field explained to me what it all meant, and it simply meant that they didn't have the proper doorstop on a particular fire exit. The scuttlebutt throughout the home certainly was that this home was in major violation of the fire code, which wasn't the case, and I found there was just sort of unnecessary anxiety.
Not that people shouldn't be entitled to that. My amendment clearly says that yes, they are entitled to these documents, but I don't want the place looking like an institution and I don't want institutional and legalistic documents hanging up on the bulletin board when I think it may be more appropriate to have a sign that lists what is available, that all of the documentation required under regulations and in the legislation be listed on the sign and that, as my motion reads, "The approved corporation shall post a notice in the home informing residents how they can inspect the documents referred to."
While I used in my earlier comments the example of the nursing station or the management office, I simply used those as examples. I agree that perhaps a more neutral area should be established for the review of these documents by residents.
The Chair: Miss Sullivan? Sorry, it's now the parliamentary assistant.
Mr Wessenger: The only comment I'll make is that I think consumer protection is very much an important part of this legislation and I think posting is very much an important part of consumer protection, and it's not just for the residents, of course, because in many instances it's the families that will really be exercising the consumer protection on behalf of their resident family member.
The Chair: Shall the motion put by Mr Wessenger carry? All in favour? Opposed? Carried.
Mr Wilson?
Mrs Sullivan: I'm next.
Mr Jim Wilson: Well, that depends on how the Chair calls it.
The Chair: For some reason I have Mr Wilson, but I think both of yours deal with the same --
Mr Jim Wilson: Mr Chairman, I would like to put this on the record.
I move that section 9.15 of the Charitable Institutions Act, as set out in section 5 of the bill, be struck out and the following substituted:
"Having documents available
"9.15(1) An approved corporation maintaining and operating an approved charitable home for the aged shall ensure that the following documents are available for inspection in the home:
"1. A copy of the service agreement relating to the home.
"2. A copy of each of the financial statements, reports and returns that the approved corporation has filed with the minister under this act.
"3. All other documents that the regulations require the approved corporation to have available for inspection in the home.
"Notice to residents
"(2) The approved corporation shall post a notice in the home informing residents how they can inspect the documents referred to in subsection (1)."
My previous comments stand, Mr Chairman.
The Chair: Ms Sullivan.
Mrs Sullivan: I too would like to read my own motion into the record. I don't know how we deal with this.
Mr Jim Wilson: I think you have to vote on the PC motion because it's on the floor, Mr Chairman.
The Chair: Shall the motion made by Mr Wilson carry? All in favour? Opposed? Defeated.
Ms Sullivan.
Mrs Sullivan: I move that section 9.15 of the Charitable Institutions Act, as set out in section 5 of the bill, be struck out and the following substituted:
"Availability of information
"9.15 An approved corporation maintaining and operating an approved charitable home for the aged shall ensure that the following documents are made available in a prominent place in the home:
"1. A copy of the service agreement relating to the home.
"2. Copies of those financial statements, reports and returns filed with the minister that the regulations require to be made available.
"3. All other documents and information that the regulations require to be made available."
The Chair: Shall the motion made by Miss Sullivan carry? All in favour? Opposed? Defeated.
Mr Wessenger, yours is the next one.
Mr Wessenger: I move that section 9.15 of the Charitable Institutions Act, as set out in section 5 of the bill, be amended by adding the following subsection:
"Exception
"(2) In posting anything under subsection (1), the approved corporation shall not disclose the salary of an individual."
This is important; we have consistency.
The Chair: Shall the motion by Mr Wessenger carry? All in favour? Carried.
The next motion is also a government motion.
1040
Mr Wessenger: I move that section 5 of the bill be amended by adding the following sections to the Charitable Institutions Act, after section 9.15:
"Residents' council
"9.16(1) If a request for the establishment of a residents' council is made to the administrator of an approved charitable home for the aged by at least three persons, each of whom is a person mentioned in subsection (2),
"(a) the administrator shall promptly notify the director and the approved corporation maintaining and operating the home of the request; and
"(b) the approved corporation shall assist the persons who made the request in establishing a residents' council for the home within 60 days of the request.
"Request for residents' council
"(2) For the purpose of subsection (1), the following persons may request the establishment of a residents' council for an approved charitable home for the aged:
"1. A resident of the home.
"2. A person who is lawfully authorized to make a decision on behalf of a resident of the home concerning the resident's personal care.
"Right to be a member
"(3) The following persons are entitled to be members of the residents' council of an approved charitable home for the aged:
"1. A resident of the home.
"2. A person who is lawfully authorized to make a decision on behalf of a resident of the home concerning the resident's personal care.
"3. A person selected by the resident or by the person who is lawfully authorized to make a decision on behalf of the resident concerning the resident's personal care.
"Who may not be a member
"(4) No officer or director of an approved corporation maintaining and operating an approved charitable home for the aged may be a member of the residents' council of the home, unless he or she is also a person mentioned in paragraph 1 or 2 of subsection (3).
"Same
"(5) No administrator or member of the staff of an approved charitable home for the aged may be a member of the residents' council of the home.
"Appointment by minister
"(6) At the request of a residents' council, the minister may appoint no more than three persons to be members of the residents' council, and those persons shall serve as members at the pleasure of the residents' council.
"Same
"(7) Only a person who lives in the area in which the approved charitable home for the aged is located and who is not employed by and does not have a contractual relationship with the ministry of the minister may be appointed under subsection (6).
"Meeting
"9.17(1) Unless an approved charitable home for the aged has a residents' council, the approved corporation maintaining and operating the home shall, at least once in each year, convene a meeting of the residents of the home and the persons who are lawfully authorized to make a decision on behalf of a resident concerning the resident's personal care, to advise them of their right to establish a residents' council.
"Results of meeting
"(2) Within 30 days after the meeting, the approved corporation shall notify the director of the results of the meeting.
"Powers of residents' council
"9.18 It is the function of a residents' council of an approved charitable home for the aged, and the council has the power, to,
"(a) advise residents of the home respecting their rights and obligations under this act;
"(b) advise residents of the home respecting the rights and obligations of the approved corporation maintaining and operating the home, under this act and under the service agreement relating to the home;
"(c) meet regularly with representatives of the approved corporation maintaining and operating the home to,
"(i) review inspection reports relating to the home received by the approved corporation under subsection 10.1(15),
"(ii) review the allocation of money for accommodation, care, services, programs and goods provided in the home,
"(iii) review the financial statements relating to the home filed with the minister under the regulations, and
"(iv) review the operation of the home;
"(d) attempt to mediate and resolve a dispute between the approved corporation maintaining and operating the home and a resident of the home; and
"(e) report to the minister any concerns and recommendations that in its opinion ought to be brought to the minister's attention.
"Residents' council assistant
"9.19(1) With the consent of a residents' council, the minister may appoint a residents' council assistant to assist the residents' council in carrying out its responsibilities.
"Duties
"(2) In carrying out his or her duties, a residents' council assistant shall take instructions from and report to the residents' council.
"Information and assistance
"9.20(1) An approved corporation maintaining and operating an approved charitable home for the aged shall cooperate with the residents' council and the residents' council assistant and shall provide them with such financial and other information and such assistance as is required by the regulations.
"Obstruction
"(2) No person shall refuse entry to an approved charitable home for the aged to a residents' council assistant or otherwise hinder, obstruct or interfere with a residents' council assistant carrying out his or her duties.
"Offence
"(3) Any person who contravenes subsection (1) or (2) is guilty of an offence and on conviction is liable to a fine of not more than $5,000 for a first offence and not more than $10,000 for each subsequent offence.
"Immunity
"9.21 No proceeding shall be commenced against a member of a residents' council or a residents' council assistant for any act done under section 9.18 unless the act is done maliciously or without reasonable grounds."
This amendment adds a provision to the Charitable Institutions Act regarding the establishment of residents' councils. It should be stood down, again, until the substitute decision-making amendment is accepted.
The Chair: It'll be stood down. I have as well a Liberal amendment. Ms Sullivan, if you're going to present that, then it should be read into the record as well. I assume you would want to stand it down.
Mrs Sullivan: Then I think I'd better do that.
I move that section 5 of the bill be amended by adding the following sections to the Charitable Institutions Act after section 9.15:
"Residents' council
"9.16(1) If at least three persons who are either residents in an approved charitable home for the aged or representatives of residents so request, a residents' council shall be established for that home.
"Same
"(2) The residents' council shall be established and conducted in the manner provided for by the regulations.
"Members
"(3) Each resident of an approved charitable home for the aged or, if the resident is unable to participate, the resident's representative may be a member of the residents' council and, in addition, a person selected by the resident or the representative may be a member of the residents' council.
"Same
"(4) The minister, at the request of a residents' council, may appoint no more than three persons to be members of the residents' council and those persons shall serve as members at the pleasure of the residents' council.
"Same
"(5) The persons appointed under subsection (4) shall be persons who live in the area in which the approved charitable home for the aged is located and who are not employed by and do not have a contractual relationship with the ministry.
"Same
"(6) No officer or director of an approved corporation maintaining and operating an approved charitable home for the aged and no member of the staff of an approved charitable home for the aged shall be a member of a residents' council.
"Obligation of administrator
"(7) The administrator of an approved charitable home for the aged shall, within 90 days of the date on which the service agreement that relates to the home comes into effect, convene a meeting of the residents or their representatives, to advise the residents that they have the right to form a residents' council.
"Same
"(8) If a residents' council is not established in an approved charitable home for the aged after the convening of a meeting under subsection (7), the administrator of the home shall convene such a meeting at least once a year thereafter until a residents' council is established.
"Same
"(9) If a meeting is held under subsection (7) or (8), the administrator shall notify the director within 30 days of the results of the meeting.
"Same
"(10) If three or more residents of an approved charitable home for the aged or their representatives at any time express an interest to the administrator in forming a residents' council, the administrator shall forthwith notify the director of the interest and assist the residents of the home or their representatives in forming a council within 60 days of the request.
"Powers of the residents' council
"9.17 It is the function of a residents' council of an approved charitable home for the aged and it has the power to:
"(a) advise residents of the home respecting their rights and obligations under this act;
"(b) advise residents of the home respecting the rights and obligations of the approved corporation maintaining and operating the home, under this act;
"(c) meet regularly with the approved corporation maintaining and operating the home to
"(i) review ministry inspection reports,
"(ii) review the allocation of money for food, supplies and services provided by the home,
"(iii) review the financial statements of the home filed with the minister under the regulations, and
"(iv) review the operation of the home;
"(d) attempt to mediate and resolve any dispute between a resident of the home and the approved corporation maintaining and operating the home; and
"(e) report to the minister any concerns or recommendations that in its opinion ought to be brought to the minister's attention.
"Residents' council assistant
"9.18(1) The minister, with the consent of a residents' council, may appoint a residents' council assistant to assist the residents' council in carrying out its responsibilities.
"Same
"(2) In carrying out his or her duties, a residents' council assistant shall take instructions from and report to the residents' council.
"Entry not refused
"(3) No person shall refuse entry to an approved charitable home for the aged to a residents' council assistant or obstruct a residents' council assistant.
"Offence
"(4) Any person who contravenes subsection (3) is guilty of an offence and on conviction is liable to a fine of not more than $5,000 for a first offence and not more than $10,000 for each subsequent offence.
"Cooperation
"9.19(1) An approved corporation maintaining and operating an approved charitable home for the aged shall cooperate with the residents' council and the residents' council assistant and shall provide the information, including financial information, and assistance to them provided for by the regulations.
"Offence
"(2) Any person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $5,000 for a first offence and not more than $10,000 for each subsequent offence.
"Immunity
"9.20 No proceeding shall be commenced against a member of a residents' council or a residents' council assistant for any act done in accordance with section 9.17, unless the act is done maliciously or without reasonable grounds."
1050
The Chair: Thank you. I'm wondering, do you want to just make your comment on that so that when we do come back --
Mrs Sullivan: Yes. Basically, this proposal for the residents' council follows what is currently included in the Nursing Homes Act residents' council provisions, goes no further than that and does not reflect the approach that the government is taking with respect to substitute decisions which, in my view, is unnecessary.
Mr Jim Wilson: I just want to serve notice right now that I think both the Liberal and government amendments concerning residents' councils perhaps go a bit too far in terms of the powers and duties of the council, the power of the minister to appoint members to the council and in terms of the residents' council assistant.
I just want to serve notice that I'd like some time this afternoon, obviously, to discuss this in great length. I think a cursory view would suggest that perhaps the residents' councils may indeed, to some extent, undermine the governance of a home. I wouldn't want to see that, but I do want to make it clear we are supportive of the principle of establishing residents' councils, but perhaps these motions have gone a bit too far.
The Chair: Thank you. Both of those, then, are stood down.
Prior to moving on to the next amendments, I would ask, shall section 6 of the bill, as printed, carry? Carried.
We then move to a government motion under section 7.
Mr Wessenger: I move that the definition of "record" in subsection 10.1(1) of the Charitable Institutions Act, as set out in section 7 of the bill, be amended by adding after "form" in the last line "but does not include that part of a record that deals with quality management activities or quality improvement activities."
This is provided inspectors are not entitled to have access to records dealing with quality management activities or quality improvement activities.
Mrs Sullivan: We will not be supporting this, as we have an amendment coming soon -- I was just trying to find out where it is -- that would also include peer review and professional review activities as excluded parts of a record for purposes of this section. I think those are important additions, and I would hope that the government would consider those.
Here we are. We have excluded solicitor-client privilege and the personnel quality review records comparable to what is included in the advocacy bill. My amendments are listed under section 7 of the bill, subsections (10.1) (5.1), (5.2) and (5.3).
The Chair: That will come up later. Thank you.
Mrs Sullivan: How would that be dealt with, in that they deal with precisely the same issue?
The Chair: That one will be amending a different subsection?
Mrs Sullivan: My amendment is section 7, subsection 10.1(5.1). I don't know why there's a difference.
The Chair: Let me just seek some assistance from the table here. While we're doing that, Mr Wilson, do you want to comment?
Mr Jim Wilson: I think Mrs Sullivan raised an excellent point. Perhaps we could have legal counsel, if it's appropriate, comment on the government motion versus the Liberal motion. The way I read it, although I don't know why they're in different sections, and I know you're asking the drafters that question, is that the difference is that the Liberal motion is more specific. To me, not being a lawyer, it's preferable but I'd like a comment.
The Chair: Mr Wilson, I wonder if I might suggest this -- I will also note not as a lawyer -- could I ask the government if we could defer consideration of its motion, deal with the Liberal one and then come back to the government motion? Might that perhaps allow us to work our way through this? We would deal with the Liberal section 7 of the bill, subsections 10.1(5.1) etc of the act, and then come back to yours, given that they are related. Is that all right?
Mr Wessenger: Yes, okay.
The Chair: Mrs Sullivan, would you then read your amendment into the record and we'll deal with that first.
Mrs Sullivan: I move that section 10.1 of the Charitable Institutions Act, as set out in section 7 of the bill, be amended by adding the following subsections:
"Exception, solicitor-client privilege
"(5.1) Subsection (5) does not override any solicitor-client privilege to which a record is subject.
"Exception, law enforcement
"(5.2) An inspector is not entitled to have access to a record or part of a record whose disclosure could reasonably be expected to produce one of the results described in subsection 14(1) of the Freedom of Information and Protection of Privacy Act (law enforcement).
"Exception, personnel records, quality review etc
"(5.3) An inspector is not entitled to have access to a personnel record or to a record or part of a record dealing with,
"(a) quality review activities;
"(b) peer review or performance review activities; or
"(c) quality improvement activities."
The Chair: Would you then comment on your amendment.
Mrs Sullivan: I think the parliamentary assistant will remember that we went around the ballpark on this entire question when we were dealing with Bill 74, Bill 109 and Bill 108 with respect to when and where records should be available and when and where records should be protected.
With respect to peer review activities, it was felt that, particularly in a quality management system, the peer review records must be protected or the quality management programs will not proceed and the peer review programs will not work. This bill is unfortunately caught in a kind of limbo between the inspection system and the compliance system of enforcement. I believe through changing quality assurance to quality management, we have made some steps to ensure that quality improvement programs using a multidisciplinary team approach in each home will be brought into effect. They will not work, however, if reports that are prepared as part of peer review or performance review activities, which are integral to a quality management program, are available for inspection and can be used detrimentally against the personnel of the home.
I think the government is making a bad mistake by not including or considering the issues I have included in my amendment in its own.
The Chair: Perhaps we could just get all of these arguments on the --
Mr Jim Wilson: This may be of some unintended help to the government.
The Chair: Mr Wilson, you are always of help to the government.
Mr Jim Wilson: When I look at the Liberal motion, I have two questions. First, is it necessary to put an exception regarding solicitor-client privilege? To me, that's redundant. That's covered in the law already. Second, the exception regarding quality review contained in the Liberal motion, the way I read the wording of the government amendment, it's more general, and upon second reading, it seems to me covers the whole gamut quite sufficiently. So I would like legal counsel's opinion on the effect of the difference between these two motions.
1100
Mr Wessenger: I was going to ask ministry counsel, if that was satisfactory, to respond. First of all, you're quite correct, Mr Wilson, with respect to solicitor-client privilege. It is redundant; it's protected in any event. I'll ask legal counsel to comment on peer review and also the other language, performance review activities. There's a particular reason why that would be difficult with respect to being removed, because we do have to have the power to investigate abuse situations, and the performance review activities are necessary. Also, there is a distinction from the Advocacy Act, because there is no limitation on what information may be used by an advocate, while there is a limitation for compliance with the act. With that, I'll turn it over to legislative counsel to add. Maybe I've covered most of it.
Ms Czukar: Gail Czukar, legal counsel with the Ministry of Health. I think most of the points have been covered by Mr Wessenger, but in our view, records related to peer review activities would be included in quality management and quality review activities. With respect to performance review records, inspectors of the ministry do need access at times to performance appraisals and that sort of thing, and they do need access to personnel records to verify qualifications that are required by the act and regulations.
I would just emphasize Mr Wessenger's point that access by advocates to records is very different from access by ministry inspectors. The section of the act that we've proposed includes a purpose section which says that the inspectors inspect for the purpose of determining compliance with the act and regulations. Advocates don't have that kind of limitation; they can use information for whatever purpose their client wishes. So we believe our motion does exempt the records that need to be exempted for quality management and quality review activities, and inspectors need access to the other records to determine compliance with the act and regulations.
Mr Jim Wilson: I certainly appreciate the comment. I can see inspectors needing access to personnel records. I would be a little more comfortable if we could have a marriage of these two amendments. I'd like to take it as a given, but given that this concern about including peer review activities and documentation thereof was so very often mentioned to me at meetings I had regarding this legislation and mentioned at the committee during the hearings, perhaps the government could amend its amendment to not only talk about quality management activities or quality improvement activities but also perhaps include peer review activities, just to make sure we're absolutely clear. Then I would be very comfortable supporting the government's amendment.
Mrs Sullivan: We would support that as well, Mr Chairman.
Mr Jim Wilson: The government may feel it's unnecessary, but I'll tell you, a lot of people who are actually in the field and who are expert in this are very worried about the fact that the government to this point hasn't put forward the exception on peer review.
Mr Wessenger: On advice of legal counsel, we're not prepared to include that amendment.
The Chair: I therefore put the motion by Ms Sullivan. Shall her motion carry? All those in favour? Opposed? The motion is defeated.
We will then return to the government motion, which I believe has been read into the record. We will simply put the question. Shall the government motion carry?
Mr Hope: Which one? Can you be specific?
The Chair: Sorry. Please make sure I'm correct: It's section 7 of the bill, clause 10.1(2)(b). Is that the right one?
Mr Wessenger: No. It's subsection 10.1(1).
The Chair: Oh, I'm sorry. I was looking at the Liberal one.
Let me repeat: Shall the government motion, section 7 of the bill, subsection 10.1(1), carry? Carried.
We move to another government motion.
Mr Wessenger: I move that clause 10.1(2)(b) of the Charitable Institutions Act, as set out in section 7 of the bill, be struck out and the following substituted:
"(b) may, if he or she has reasonable grounds to believe that the records or other things pertaining to an approved charitable home for the aged are kept in a place that is not in the home, enter the place at all reasonable times in order to inspect such records and other things."
This amendment adds a new requirement that an inspector should have reasonable grounds to believe the records of the home are kept offsite in order to enter and inspect premises.
Mr Jim Wilson: I'm sorry, I didn't hear the last part of your explanation.
Mr Wessenger: We basically require reasonable grounds, which is the normal provision, with respect to entering. I believe it's the test for warrant as well.
The Chair: Shall the government motion carry? Carried.
Ms Sullivan, yours is the next one.
Mrs Sullivan: I move that clause 10.1(2)(b) of the Charitable Institutions Act, as set out in section 7 of the bill, be struck out and the following substituted:
"(b) may, under the authority of a warrant issued under section 10.1.1, enter a place in which records or other things pertaining to an approved charitable home for the aged are kept, in order to inspect such records and other things."
This may become redundant, as the government motion moves ahead with respect to a warrant. This leaps ahead, I think, so I'll stand it down until the government reaches its motion.
The Chair: Deferred?
Mrs Sullivan: Yes.
Mr Jim Wilson: Do the Liberals not have another (2)(b)?
Mrs Sullivan: Yes, which I'm not putting forward.
The Chair: That second one is withdrawn. Then the Conservative motion.
Mr Jim Wilson: I move that subsections 10.1(2) and (3) of the Charitable Institutions Act, as set out in section 7 of the bill, be struck out and the following substituted:
"Inspection of approved charitable home for the aged
"An inspector may at all reasonable times enter and inspect an approved charitable home for the aged, for the purpose of determining whether there is compliance with this act, the regulations or a service agreement."
I just want to comment that inspectors will have considerable power under this act. This amendment seeks to ensure that inspections are carried out at reasonable times and only in places that should concern the inspector. Any areas not covered in the legislation are of course open for inspection should the inspector have the necessary warrant from a justice of the peace. For this reason, the wide powers under this section can and should be limited somewhat, and that's the purpose of this amendment.
Mr Wessenger: We'll be voting against this motion because we've already put in a provision about reasonable grounds with respect to offsite, which Mr Wilson voted in favour of; also, in many cases the records are at head office, and we don't want to eliminate the right of the inspector to attend at offsite locations such as head offices.
The Chair: Shall the government motion carry? All in favour?
Mr Wessenger: No, it's not a government motion.
The Chair: I'm sorry, shall Mr Wilson's motion carry? I'm really getting confused here. All in favour? Opposed? Defeated.
We then move to a Liberal motion.
Mrs Sullivan: I won't be putting this one forward.
The Chair: Mr Wilson.
Mr Jim Wilson: I move that section 10.1 of the Charitable Institutions Act, as set out in section 7 of the bill, be amended by adding the following subsection:
"Limitation on inspectors' powers
"(5.1) Subsection (5) does not give an inspector the authority to conduct an examination or test on an individual."
Even though the expression "tests and examinations" represents common legal terminology, I propose it be clarified, as it implies something different in the medical field. My amendment would ensure that inspectors could carry out their duties within their field while not being able to cross over the line into other terrain which is perhaps medical. It has been brought to my attention that it would be preferable to clarify the language surrounding the term "examination" to ensure that inspectors are limited to non-medical examination. That's the intent of this amendment.
Mr Wessenger: We will not be supporting that, because basically what we're concerned about is an abuse case. I think it's fair to say that you couldn't have a personal examination of an individual without that person's consent in any event; it would be an assault if you had such a situation. So the person's consent would, by common law, be required for any test or examination of any type. I'm just concerned that this motion might prohibit such examinations, even with the consent of the person, so for that reason, I will be voting against it.
The Chair: Shall Mr Wilson's motion carry? All in favour? Opposed? The motion is defeated.
We then move, Mr Wilson, to your next amendment.
Mr Jim Wilson: I move that subsection 10.1(12) of the Charitable Institutions Act, as set out in section 7 of the bill, be amended by inserting after "at the inspector's request" in the fourth and fifth lines, "and at a time that is mutually agreed upon".
The addition of this phrase at the end of that paragraph, the phrase being "and at a time that is mutually agreed upon," simply acknowledges that other professionals' schedules must be respected. For instance, health care professionals may be required to produce things or assist inspectors as a result of this clause. It seems to me that this would add some goodwill to this clause and, while compliance by the required health care professionals is not in question, it would simply try to ensure that convenience is respected.
Mr Wessenger: We will not be voting in favour of this amendment because there is concern that it could in effect negate the whole process.
The Chair: Shall Mr Wilson's motion carry? All in favour? Opposed? It is defeated.
Mr Wilson, yours is the next one.
Mr Jim Wilson: I move that section 10.1 of the Charitable Institutions Act, as set out in section 7 of the bill, be amended by adding the following subsection after subsection (12):
"Reimbursement of expenses
"(12.1) The minister shall reimburse an approved corporation for all extraordinary expenses incurred in the preparation, production and interpretation of records of an approved charitable home for the aged for an inspector."
The Chair: Mr Wilson, I'll have to rule this out of order under section 56.
Mr Jim Wilson: May I say that I'm not surprised that you ruled it out of order.
The Chair: The next one will be the government motion.
Mr Wessenger: I move that section 10.1 of the Charitable Institutions Act, as set out in section 7 of the bill, be amended by adding the following subsection:
"Inspection report
"(15) Upon completing an inspection under this section, an inspector shall prepare an inspection report and shall give a copy of the report to the approved corporation maintaining and operating the home."
This really requires the inspector to make an inspection report after completing the inspection, and it's a precondition for the posting requirement.
Mr Jim Wilson: Members will note the next PC motion is very similar except that the PC motion is a little more detailed. I believe homes should be fully informed of the inspector's finding, so I agree with the intent of the government's amendment in that regard. The inspectors should be required to advise the facilities of their findings in order that the appropriate changes can be made promptly.
I would ask the government to just comment on what perhaps the parliamentary assistant doesn't like about the PC motion, even though it's not on the table at this point, given that I think it's a better motion than the government motion.
Mr Wessenger: I'd be very happy to comment on that. In fact, the reason for our preference for our motion is that "Upon completing an inspection" is much earlier than "Within thirty days." That means it should be done, in effect, immediately upon the completion of the report. We think the information should be available as quickly as possible.
Mr Jim Wilson: If I may, perhaps I could ask what the current practice is then. It's my understanding -- please correct me if I'm wrong -- that the intention now is to inform homes upon completion of an inspection, but that this often doesn't take place or can often not take place for many, many days after the inspection. In fact homes aren't even aware whether the inspection is complete or not; therefore, the 30-day time line is to ensure that all parties concerned know the time framework involved.
Mr Wessenger: I'll ask legal counsel just to comment on that.
Ms Czukar: This is really a question of ministry practice but, in the absence of my colleague Mr Quirt, I'll just say that our understanding is that inspectors complete a report, including the requests for corrective action by the home, and leave it with the home when they leave after completing the inspection. So the reports are effectively done immediately.
Mr Jim Wilson: There's a second point that I'd also like a comment upon. You'll note that the PC motion is more specific in terms that it requires the inspector to report "all findings, conclusions and recommendations to the administrator of the approved charitable home for the aged." The reason for that is that I'm told that from time to time inspectors don't report all findings, that is, including all the notes they may make in an addendum to the report.
Homes will then find that another inspector will come along later and say, "You never corrected X, Y and Z of the previous inspection report." The administrator of the home will say, "Well, I never heard about these problems," and they'll say, "Well, it's right here in the inspector's working copy of the report." The administrator will say, "But those findings were never conveyed to me."
They find that when they change inspectors, and when there's inconsistency on behalf of the government, it can be problematic. This requirement would say you've got to disclose everything, and with the next inspector along, everybody knows the playing field that we're dealing with.
I'm only bringing this concern forward on behalf of administrators and so on because I believe they have some real- life examples where this has happened to them, and with moving to a contractual service agreement arrangement, it becomes very clear that all parties are sure where they stand at the end of an inspection.
Mr Wessenger: I take your comments, and certainly they should be passed on to the administrator.
The Chair: Shall the government motion carry? All in favour? Opposed? Carried. Mr Wilson.
Mr Jim Wilson: I move that section 10.1 of the Charitable Institutions Act, as set out in section 7 of the bill, be amended by adding the following subsection:
"Inspection report
"(15) Within thirty days of completing an inspection under this section, an inspector shall" --
Mr Hope: Excuse me, just a point of procedure. How can you read that motion when we've just amended that section?
The Chair: He can read in his motion. It can't carry, but he can read it into the record.
Mr Jim Wilson: And you can vote on it.
The Chair: We'll have to vote on it.
Mr Hope: Why do we have to vote on it when we've just amended that section?
Mr Jim Wilson: We don't presuppose anything.
Mrs Sullivan: It's a democracy.
Mr Hope: I'm asking for a point of clarification from the Chair on procedural aspects. We just amended (15).
The Chair: Procedurally he may read his motion into the record and I will simply ask for a vote on it.
1120
Mr Hope: But I'm asking under procedural. We just amended that (15) and now we're putting another amendment on (15)?
The Chair: Well, it is in effect another amendment, which presumably, given the vote previous, will not carry.
Mr Hope: I don't agree, but okay.
Mr Jim Wilson: We don't like to be presumptuous.
Mr Hope: Yes, but I can't challenge the Chair, so I have to agree with him.
Mrs Sullivan: It is a democracy, Randy.
Mr Jim Wilson: Mr Hope may want to note that that has happened -- it's very good of him to bring that point up, but it has happened several dozen times.
Mr Hope: Okay.
Mrs Sullivan: Come on, let's go.
Mr Jim Wilson: I move that section 10.1 of the Charitable Institutions Act, as set out in section 7 of the bill, be amended by adding the following subsection:
"Inspection report
"(15) Within thirty days of completing an inspection under this section, an inspector shall submit a full report of all findings, conclusions and recommendations to the administrator of the approved charitable home for the aged."
Mr Chairman, my previous comments stand. I think this clause deserves more serious consideration than has been given it by the government and I would ask for a recorded vote.
The Chair: Shall Mr Wilson's motion carry? And a call has been made for a recorded vote. All those in favour?
Ayes
Fawcett, O'Neill (Ottawa-Rideau), Sullivan, Wilson (Simcoe West).
The Chair: All those opposed?
Nays
Hope, O'Connor, Perruzza, Wessenger, Wiseman.
The Chair: It is defeated. We then move to government motion 10.1.1.
Mr Wessenger: I move that section 7 of the bill be amended by adding the following section to the Charitable Institutions Act, after section 10.1:
"Warrant
"10.1.1(1) A justice of the peace may issue a warrant authorizing an inspector named in the warrant to enter premises specified in the warrant and to exercise any of the powers mentioned in subsection 10.1(5), if the justice of the peace is satisfied on information under oath that,
"(a) the inspector has been prevented from exercising a right of entry to the premises under subsection 10.1(2) or has been prevented from exercising a power under subsection 10.1(5); or
"(b) there are reasonable grounds to believe that the inspector will be prevented from exercising a right of entry to the premises under subsection 10.1(2) or will be prevented from exercising a power under subsection 10.1(5).
"Expiry of warrant
"(2) A warrant issued under this section shall name a date on which it expires, which date shall not be later than thirty days after the warrant is issued.
"Extension of time
"(3) A justice of the peace may extend the date on which a warrant issued under this section expires for an additional period of no more than thirty days, upon application without notice by the inspector named in the warrant.
"Use of force
"(4) An inspector named in a warrant issued under this section may use whatever force is necessary to execute the warrant and may call upon a police officer for assistance in executing the warrant.
"Time of execution
"(5) A warrant issued under this section may be executed only between 8 am and 8 pm, unless the warrant specifies otherwise.
"Other matters
"(6) Subsections 10.1(4) and 10.1(6) to (15) apply with necessary modifications to an inspector executing a warrant issued under this section."
I think this is quite self-explanatory. It permits an inspector to obtain a warrant in the event he or she is denied entry.
Mrs Sullivan: We have an amendment which also would introduce warrants into the bill, and when I read our proposals side by side with those of the government, I want to make a couple of observations.
One of them is that our amendment would indicate that the inspector could call on the police officer for assistance in executing the warrant where that's necessary. The government goes much more jackbooted, if you like, into this situation by indicating that the inspector may use whatever force is necessary and then also may call on a police officer. In our view, that's overkill; the execution paragraph from our proposal is more acceptable and we would prefer to see that there.
Additionally, just looking at the duration here, I believe that we both have extension of the -- no. We don't both include the extension of the warrant, but the proposal we have put forward is that the warrant would be valid for a shorter period of time. Then presumably an extra application should be made. The warrant, under the government's proposal, would last for 30 days, and then a subsequent 30 days seems to us to be too extensive a length of time.
Mr Jim Wilson: I just have a question of the parliamentary assistant. What's the current practice concerning warrants issued by a justice of the peace and sought by inspectors?
Mr Wessenger: What's the existing practice?
Mr Jim Wilson: Yes. I don't remember getting into great detail during the hearings about this practice, so I wouldn't mind if there was an explanation of what the current practice is.
Ms Czukar: This provision responds largely to a request by the Ontario Medical Association that if inspectors required production of documents from physicians in their offices, there be an option for the doctor to require a warrant to be produced rather than a simple written production, which is the current requirement and right of the inspector under the provision in the bill. So this is a provision that responds basically to that request. It's a complete warrant provision that contains all the rules. It's not contained in any of the acts right now.
Mr Jim Wilson: My memory isn't good enough to recall verbatim what the requirements are in the warrant provisions of the advocacy and consent legislation. Does this conform to that?
Ms Czukar: Yes, this was modelled on that. We did take it from the Advocacy Act to the extent that it was applicable.
Mr Jim Wilson: Finally, I just want to comment on the fact of use of force by an inspector. Unlike Mrs Sullivan, I don't have any particular problem with that. There's no use issuing a warrant if you can't take every reasonable means to enforce the object of the warrant, and I'll be supporting the government amendment.
Mrs O'Neill: I certainly have difficulty with this. What does the government mean by "use whatever force is necessary" and why are the hours 8 am to 8 pm? There must be reasons. They are certainly beyond normal working hours. We're talking here about institutions that have vulnerable people within them. I have difficulty with the extension and this hanging over people's heads for 30 days. I like our amendment much better with seven.
There were many, many complaints throughout the entire set of hearings about this whole sanctions, force, confrontational approach to inspection. Here I have to use the same words as Mrs Sullivan: We get a very jackboot approach, and I just don't think this is going to engender the best relationships within people. So could the government tell us what it means by "use whatever force is necessary," if that does not include a police officer, and why does it have to be 8 am to 8 pm?
Mr Wessenger: I think, as indicated earlier, it was modelled upon the Advocacy Act. It's purely a judgement matter what appropriate hours for executing a warrant are. I suppose it's normally felt that those hours are normal hours and you're not going to disturb people in their sleep etc.
Mrs O'Neill: The right people may not be present at 8 pm.
Mr Wessenger: I think it's fair to say that particularly with doctors' offices, many of them may be open between those hours of 8 am and 8 pm. There would be not much sense in somebody going for the warrant when no one was there, quite frankly.
Mrs O'Neill: That's my point.
Mr Wessenger: Of course force, as Mr Wilson indicated, is a normal provision. It's always in that if you can't take the appropriate level -- there are common-law protections with respect to health and what is done. It's not an unlimited right.
The Chair: Shall the government motion carry? Carried.
Ms Sullivan, did you --
Mrs Sullivan: I'll not put my motion forward, Mr Chairman.
On a point of order, Mr Chairman: I wonder if we could take a three- or four-minute break now and then come back?
Mr Hope: Is that why you're jumping?
Mrs Sullivan: No, we have some amendments to review.
The Chair: We will recess for three minutes.
The committee recessed at 1131 and resumed at 1136.
The Chair: The committee will reconvene. We move to the government motion to section 10.3.
Mr Wessenger: I move that section 7 of the bill be amended by adding the following section to the Charitable Institutions Act after section 10.2:
"Protection from reprisals
"10.3(1) No person shall do anything, or refrain from doing anything, in retaliation for another person making a disclosure to an inspector, so long as the disclosure was made in good faith.
"No interference
"(2) No person shall seek, by any means, to compel another person to refrain from making a disclosure to an inspector.
"Offence
"(3) Any person who contravenes subsection (1) or (2) is guilty of an offence and on conviction is liable to a fine of not more than $5,000 for a first offence and not more than $10,000 for each subsequent offence."
This amendment provides protection from reprisals to anyone who discloses information to an inspector and makes it an offence to retaliate or compel someone not to speak to an inspector.
The Chair: Any comment?
Mrs Sullivan: We concur.
Mr Jim Wilson: This would be the whistle-blowing section. I don't particularly have any problem with it, other than that I question how far the prohibition would apply. For instance, what does it really mean: "do anything, or refrain from doing anything, in retaliation for another person making a disclosure to an inspector"?
For instance, if somebody were to give an inspector personal information -- we've already prohibited, by example, that you can't have the posting of salaries and that sort of thing. The inspector would have access to that, but given the peer review stuff, for instance -- that would be a better example -- if someone were to disclose information contained in peer review activities, would they still be covered under this whistle-blowing legislation and would they still enjoy immunity, as it were?
Mr Wessenger: I think the limitation is, as long as the disclosure was made in good faith.
Mr Jim Wilson: I realize that's legal terminology and a catch-all. I guess we won't debate it here; I'll take your word that this has been well-thought-out by the government.
It just seems to me that while whistle-blowing is necessary -- and a certain amount of it goes on now, in that people have the right to approach their member of provincial Parliament, and do from time to time, regarding concerns they have with administration in homes -- I just want to make the final comment that it's kind of a sad day when you have to put whistle-blowing provisions in legislation. I think people should feel free, in a democracy, to approach their MPP. I get disturbed by this type of legislation, because to me it erodes credibility and the role of elected politicians. While I'll support it, I just want to put on the record that I have reservations about it.
Mr Wessenger: I just might make a comment on this whole question. This only provides protection to the person who does the initial whistle-blowing. I think people should be aware that anybody who passed on public disclosure of any of that information that was incorrect could have legal liability. For instance, an MPP, to give an example, provided with incorrect information who then makes it public other than in the House, could find himself or herself with civil liabilities.
The Chair: Shall the government motion carry? All in favour? Opposed? Carried.
We move to section 8, a government amendment.
Mr Wessenger: I move that clause 11(1)(c) of the Charitable Institutions Act, as set out in section 8 of the bill, be amended by:
(i) striking out "is in contravention of" in the second and third lines of subclause (i) and substituting "has contravened"; and
(ii) striking out "is in breach of" in the second and third lines of subclause (ii) and substituting "has breached".
This amendment allows the minister to revoke approval for a previous and recurring contravention of the act or the regulations and previous and recurring breaches of the service agreement. I think it's the same rationale as we had with respect to a previous amendment.
Mrs Sullivan: Once again we will not be supporting this amendment. We feel that the homes are left in the impossible situation of being faced with charges or reduction of funding for an incident that could merely be a technical breach or that may have occurred substantially before and around which records have been lost and/or where corrections have been made.
The Chair: Shall the government motion carry? All in favour? Opposed? Carried.
Shall section 8 of the bill, as amended, carry? All in favour? Section 8 is carried.
We then move to section 9 and begin with the Conservative amendment.
Mr Jim Wilson: I move that clause 12(b.2) of the Charitable Institutions Act, as set out in subsection 9(1) of the bill, be struck out and the following substituted:
"(b.2) governing applications to placement coordinators for a determination, including prescribing the placement coordinators to whom applications may be made and the frequency with which applications may be made."
This is simply a clause amending regulation-making powers, an attempt to clarify -- and I think improve upon to a certain extent -- what currently exists in (b.2) of the legislation.
Mr Wessenger: We'll not be voting for this amendment because it would not provide, in our opinion, enough flexibility in the interim situation until we have the whole, final placement coordination process.
The Chair: Shall Mr Wilson's motion carry? All in favour? Opposed? Defeated.
We then move to the Liberal motion.
Mrs Sullivan: I think the government has a motion before mine.
The Chair: Yes, it does. Do we have a new yellow page? Is this different? Sorry, we have some coloured sheets here. I just want to make sure we're singing from the same hymn-book.
Mr Wessenger: I think they start with 18(5). This one's okay.
The Chair: Everything is copacetic. Mr Wessenger, would you move your amendment, please?
Mr Wessenger: I move that clause 12(b.4) of the Charitable Institutions Act, as set out in subsection 9(1) of the bill, be struck out and the following substituted:
"(b.4) prescribing, for the purpose of clause 9.5(8.5)(c), additional circumstances which are grounds for an approved corporation to withhold approval for the admission of a person to an approved charitable home for the aged;
"(b.4.1) prescribing and governing the obligations of an approved corporation in relation to giving or withholding approval for the admission of a person to an approved charitable home for the aged, and governing the written notice required to be given under subsection 9.5(8.6)."
This is a regulation-making power and the wording's been changed to reflect changes in subsection 9.5(8.5).
Mrs Sullivan: We'll be supporting this amendment and not be putting forward the amendment which follows. We feel that this is an important change to the regulations under the act in that homes will be able to have input into whether or not they can serve the person whom a placement coordinator would otherwise, had this change not been made, have dropped upon them. So we are strongly in favour of this motion. We feel that it's a significant improvement.
Mr Jim Wilson: I too want to indicate my support for this government amendment, and I want to give an opportunity for the parliamentary assistant to assure members of provincial Parliament and the public that homes themselves will be very much part of the process in drafting these regulations, now that we're into the regulatory-making powers of the act, particularly this one, which extends the grounds for which an approved corporation can withhold approval for admission.
Consumers' rights and facilities' rights are something we had a lot of talk about, of course. I'd just like the parliamentary assistant to give us the assurance that the homes themselves are fully incorporated into the consultation leading to the drafting of the regulations.
Mr Wessenger: Yes, we will be consulting with them.
Mr Jim Wilson: Don't go out of your way.
Mrs Sullivan: We want that in writing.
Mr Jim Wilson: It's discomfiting to know that the parliamentary assistant in no way wants to go out of his way to assure the public that --
Mr Wessenger: The best answer is a yes or no.
The Chair: And I think the answer was yes.
Shall the government motion carry? All in favour? Opposed? Carried.
The next one: I would ask you to turn to the yellow sheets, as opposed to the white one that you have. Mr Wessenger, would you --
Mr Wessenger: Yes.
The Chair: Has everybody got that?
Mr Jim Wilson: There's a lot of yellow.
The Chair: There's a lot of yellow.
Mr Wessenger: It's very short.
The Chair: It is short and it's the second page of one of the yellow bundles.
Mr Hope: Third page.
The Chair: Sorry, third; quite right. These are tests that we all go through. Mr Wessenger, if you'd read that.
Mr Wessenger: I move that subsection 9(1) of the bill be amended by adding the following clause to section 12 of the Charitable Institutions Act, after clause 12(b.4.1):
"(b.4.2) requiring that placement coordinators have certain qualifications or meet certain requirements and prescribing such qualifications or requirements."
The Chair: Mr Wilson?
Mr Jim Wilson: Perhaps Mrs Sullivan should go, but I do think there was a Liberal motion similar to this stood down.
The Chair: Yes.
Mr Jim Wilson: Maybe we should deal with that.
Mrs Sullivan: Mr Chairman, as I recall, the motion that I made was not stood down. In fact, it was one of the opposition amendments that was accepted, as I recall, indicating that placement coordinators should be qualified and --
Mr Jim Wilson: No. It was stood down. I specifically remember commenting on it.
1150
Mrs Sullivan: All right.
The Chair: Could you just give us the number?
Mrs Sullivan: Section 5, 9.5(2.2).
Mr Wessenger: I think I should, just for clarification, indicate that we will be voting against that amendment because we don't want to disqualify existing placement coordinators by virtue of --
Mrs O'Neill: I'm sorry, can you speak a little louder?
Mr Wessenger: I just said we'd be voting against the motion that was stood down on section 5 on the basis that we don't want to disqualify existing placement coordinators.
Mrs Sullivan: Mr Chairman, that is shocking. What the parliamentary assistant has just described to us then is the circumstance whereby we could have placement coordinators who are designated by the minister who are not qualified to do the job that they are to do.
Mr Wessenger: No, the problem with that amendment -- I haven't got it in front of me, but I think the word "unless" -- what we're doing is we're putting in this provision to have enabling legislation to give us the authority to bring in those qualifications and bring in requirements. But the original motion in effect would -- "no person or entity may be designated unless the person..." Until we have the qualifications set out in the regulations, we have an automatic disqualification.
The Chair: Just so people understand what we are discussing, the second one is subsection 9.5(2.2), if you're looking for it in your material.
Mrs Sullivan: My motion was part of a two-part approach to this, one of them, which is the motion which is now stood down, saying that no person can be designated unless they're qualified. The second part is a motion, which is the next after the next government motion, which says that the minister shall prescribe the qualifications for persons and entities to be designated. The two parts work hand in hand. The second one of my motions does precisely what the government's motion does in this case. The first one says nobody can act unless they meet those regulatory requirements.
Mr Jim Wilson: I would just ask the clerk for a copy of the Liberal amendment 9.5(2.2), the stood-down motion. I just can't find my copy at the moment.
The Chair: Okay, we'll make that available. Shall we then put the government motion, clause 12(b.4.2)? Shall the motion carry? All those in favour? Opposed? The motion carries.
Mrs O'Neill: Mr Chairman, while we're just sorting out the paper, could I have for sure from the parliamentary assistant that the reason he has difficulty with our amendments is he's worried about automatic disqualification? Is that the crux of the matter?
Mr Wessenger: What we are basically concerned about is that, first of all, under that amendment, although we're discussing an amendment that's not in front of us now, until you had regulations in effect, you would not have any placement coordinators under the act, because you'd have to have those qualifications established. What we want to do is to first of all have placement coordinations across the province.
The Chair: I'm sorry, I must --
Mr Wessenger: Yes, we're out of order.
The Chair: We're out of order. We will be coming back to that. It was stood down. The next motion then is the government motion 12(b.6).
Mr Wessenger: I move that clause 12(b.6) of the Charitable Institutions Act, as set out in subsection 9(1) of the bill, be struck out.
This also should be stood down on the basis of substitute decision-making.
The Chair: Okay, this will be stood down. The government motion is next.
Mr Wessenger: Clause 12(k.1).
The Chair: Sorry, I've got a Liberal motion before that, Mrs Sullivan, clause 12(b.7).
Mrs Sullivan: This is redundant since the government motion with respect to the regulations has passed.
The Chair: All right. Mr Wessenger.
Mr Wessenger: I move that clause 12(k.1) of the Charitable Institutions Act, as set out in subsection 9(5) of the bill, be struck out and the following substituted:
"(k.1) requiring that parts of the bed capacity of approved charitable institutions or a class of approved charitable institutions be set aside for various classes of accommodation, and regulating the amount of bed capacity that must be set aside for each class."
This is required in order to classify accommodation, I assume, with respect to short-term and long-term beds.
Mr Jim Wilson: I gather the change to clause (k.1) is also to accommodate what the government has finally come around to, that is, giving a little more assurance to Canada's veterans. While you're going to classes without being specific, the original clause (k.1) talked about short-stay and preferred accommodations. Perhaps we could have a little more detailed explanation of the difference between the original clause (k.1) and the new amendment. Are not veterans' beds becoming a class of beds? Have I got that wrong? I just took a cursory look at the next amendments.
Mr Wessenger: I don't think they become a class of beds under the act. Those are basically under federal jurisdiction in a sense.
Mr Jim Wilson: I'm sorry, I don't understand the effect of the change.
Mr Wessenger: This is only for the short-term and long-term classes, the money that you can charge. In other words, to set aside a varying rate for respite care beds as distinct from the long-term care beds. That's the purpose of the regulation.
Mrs Sullivan: There are several motions with respect to what capacity should be set aside or what capacity should be funded. The words are being changed from "short-stay accommodation" to "short-stay program" etc. The problem with this change is that what the government is doing is taking out the setting aside of bed capacity for basic accommodation and moving short-stay accommodation requirements into a different section, now calling it a program. So they're basically moving from the bed emphasis to the program emphasis, but the basic accommodation now is out of the bill. There are various classes under clause (k). If you read this in comparison to clause (k.1), which is being struck out, parts of the bed capacity set aside for basic accommodation, that's out; parts of the bed capacity for short-stay accommodation, that's out. The basic accommodation is not included anywhere else in the rest of the government's amendments.
Mr Wessenger: I will ask legal counsel to clarify this point.
Ms Czukar: The point is clarified if you look at the amendment that was made to 9.3. It strikes out "basic accommodation" and adds "a class of basic accommodation," so that we now have classes of basic and preferred accommodation. That's why clause (k.1) now refers to classes of accommodation, because we can have both classes in basic and in preferred accommodation. It relates to being able to set different rates in regulation for short-stay and long-stay basic accommodation as well as different classes of preferred accommodation because, as was mentioned under 9.3, we might want to set different rates for short-stay from long-stay accommodation in basic as well as in preferred.
1200
Mrs Sullivan: Where is the amendment to 9.3?
Ms Czukar: It was carried 9.3(1)(a). It was made in the act, so this is a change to the regulation-making power in order to be able to give effect to what we did in 9.3.
Mr Jim Wilson: It does beg the question, though, because it comes up in future government amendments., What is a short-stay program then? Just because we're talking about short-stay accommodation, what's a short-stay program, because I haven't seen that?
Mr Wessenger: I will ask ministry staff to indicate what it is.
Mr Quirt: The short-stay program involves providing beds in facilities that would allow facilities to respond to the need for emergency respite care if someone needs to go in for a weekend because care givers are caring for the person at home and need an emergency break from their responsibilities.
Another example of the short-stay program would be planned respite care program, where clients and their families would pre-arrange for the person receiving care to be in the facility for a week so that the care givers might have a vacation.
The other category of short-stay program is convalescent care. If someone, for example, leaves the hospital after having a hip operated on and needs the support of a long-term care facility for a period of three or four weeks while he or she recuperates and then moves home, we would also call that an example of a short-stay program. In recognition of the lifestyle cost that families have in maintaining their residence in the community while they are only in the facility for a short period of time, it would be our intention to have a reduced rate apply for care in the facility, given that it isn't the permanent home of the resident and that they still have to meet lifestyle costs in the community.
Mrs Sullivan: Just for confirmation here, I understand that homes are now operating at about 96% occupancy and it's anticipated they're going to go up to 99% occupancy with this bill without respite care beds being set aside. Where are those beds going to come from?
Mr Wessenger: Perhaps I'll again ask ministry staff.
Mr Quirt: Currently in the nursing home program, my understanding is that the occupancy level is higher than that.
Mrs Sullivan: It's about 96.8%.
Mr Quirt: In the homes for the aged program, there are roughly 1,100 beds in residential care that are now empty. They are empty as a result of our current charging practice for residential care and the needs test associated with that and often the high fee charged to residents, sometimes $60, $70, as high as $90 a day for care in those beds. Often those beds are in unattractive ward accommodation compared to semi-private or private accommodation.
We expect with the new income-tested user fee that those beds will be filled fairly rapidly because there won't be that disincentive to occupying those beds. Each facility will have an occupancy target established, based on the demand for respite care in that particular facility, and that target can be established not only to provide for the normal flow of residents through the facility, but to allow for one, two or three or how ever many beds are required in each facility to meet the demand for respite care, and adjusted depending on whether those beds are used to the fullest potential. If respite beds go unused, then we would increase the expectation for that facility to fill them with permanent residents.
The Chair: I think we're going to have to put the question. Shall the government motion carry? All in favour? Opposed? Carried.
Mr Jim Wilson: I don't want to put staff to a great deal of bother, but I have a feeling this request may be a bit onerous. I would like, before we go into third reading in the House on this legislation, to have a clearer picture of what the classes of accommodation will be after this legislation is in effect, and a better explanation of short-stay programs.
I don't recall, during the hearings, learning about or having comment and input on all these different fees and levels of charges that we now hear are coming out in the regulatory powers. I think consumers have a right to know what the future of long-term care facilities, ie, the nursing home sector, are going to look like. I'd like a fairly comprehensive explanation of the lay of the land after this legislation takes effect. I need that obviously, and I think all members need that, before we go into third reading.
The Chair: Thank you, Mr Wilson. We now move on to the next amendment, a government amendment.
Mr Wessenger: I move that clause 12(1.1) of the Charitable Institutions Act, as set out in subsection 9(6) of the bill, be amended by striking out "and `short-stay accommodation'" in the third and fourth lines, and substituting "`short-stay program' and `veteran'."
The Chair: Everybody realizes that's a yellow sheet? Shall the government motion carry? All in favour? Opposed? Carried.
I then have a Progressive Conservative one.
Mr Jim Wilson: Is it 12(1.1)?
The Chair: Yes.
Mr Jim Wilson: I won't be introducing that.
Mr Anthony Perruzza (Downsview): On a point of order: On the last motion, I know that we voted and I know that the Conservative caucus voted, but I didn't see the Liberal caucus vote and I don't know whether it's for or against.
The Chair: It was carried.
Mr Perruzza: I understand it was carried.
The Chair: It was not a recorded vote. It was carried.
Mr Perruzza: Well, then, that's fine.
The Chair: The next motion is a government motion.
Mr Wessenger: I move that clause 12(l.2) of the Charitable Institutions Act, as set out in subsection 9(6) of the bill, be struck out and the following substituted:
"(l.2) Prescribing the maximum amounts or governing the manner of determining the maximum amounts that may be demanded or accepted from or on behalf of a resident under clauses 9.3(1)(a) and (b), prescribing the information or proof that is to be provided before a determination is made, requiring that the information provided for the purpose of a determination be provided under oath and prescribing the persons or other entities who may make the determination.
The Chair: Any comments?
Mr Jim Wilson: Just one moment.
Mr Wessenger: This does provide more specific regulation to make authority regarding income testing, which is needed if information is to be required under oath.
The Chair: Mrs Sullivan.
Mr Hope: Mr Chairman.
The Chair: Sorry, just before you begin, Ms Sullivan, Mr --
Mr Hope: Just a point of clarification. Did he say "l.2" or "1.2"? Because my paper says "1.2."
The Chair: I thought it was a 1, but it is evidently an "l."
Mr Hope: It's an "l"?
The Chair: Yes.
Mr Wessenger: I thought it was too, but --
The Chair: Sometimes an "l'' and a 1 look similar. Ms Sullivan, sorry. Would you go ahead with your comments?
Mrs Sullivan: I'm wondering what the government's rationale is that the information has to be taken under oath, which is the singular change here.
Mr Wessenger: Yes. It's the ability to require it be made under oath; it doesn't necessarily mean it'll have to be made under oath.
Mrs Sullivan: It says, "requiring that the information...be provided under oath."
Mr Wessenger: I'll ask legal counsel, then, just to --
Ms Czukar: This is a regulation-making power, so it's a permissive section that we may make regulations to require information regarding income, for example, to be given under oath where we're doing income testing. In that event, we have to be very specific about the kind of information we would require and that would have to be spelled out in the regulation as well.
1210
Mr Jim Wilson: I, too, wanted to question that because now, I guess, the answer is that this is a sort of routine way of doing things, in requiring that it be taken under oath or may require that the information be taken under oath. I thought that with the income means testing the government intends to do under this legislation, you would actually be requiring a sharing of information from the federal government to ensure you are getting accurate information regarding income supplements persons may be receiving from the federal government, because this is tied to the guaranteed income supplement, the income means test, is it not?
Mr Wessenger: The answer is that there may be some people who we can't get -- this information is not relevant; there will be some other circumstances that will involve an income testing which will not be related to the aspect of the information from the government, particularly those with -- I think perhaps one of the exception areas I'm aware of is the spousal situation, for instance. I don't believe you need any more elaboration.
The Chair: Shall the government motion carry? All in favour? Carried.
We move to the next government motion. Mr Wessenger.
Mr Wessenger: I move that clause 12(r) of the Charitable Institutions Act, as set out in subsection 9(8) of the bill, be amended by:
(i) adding, after "other" in the last line of subclause (i), "documents and"; and
(ii) striking out "and" at the end of subclause (i) and adding the following subclause after subclause (i):
"(i.1) requiring that the information provided by the approved corporation for the purpose of the reconciliation be provided under oath, and."
This again is, I think, the rationale similar to the previous motion.
The Chair: Any comment?
Mr Jim Wilson: Mr Chairman, the individual who was so worried about individuals voting before isn't even in the room, so I don't know whether to be insulted or to just --
Mr Hope: I request a recess.
The Chair: Okay, we'll recess for a moment.
Interjections.
The Chair: The committee will reconvene. Shall the government motion carry? All in favour? Opposed? Carried.
The next motion is a Conservative motion.
Mr Jim Wilson: I move that subclause 12(r)(i) of the Charitable Institutions Act, as set out in subsection 9(8) of the bill, be struck out and the following substituted:
"(i) requiring the approved corporation to provide, at specified intervals, proof of maintenance and operating costs, information about the financial affairs and the level of occupancy of the home and other information, and."
Mr Chairman, the change here is quite significant. It's been brought to my attention that the way Bill 101 is currently drafted, the wording in (r)(i) requires and has required, I understand, for quite some time, audited financial statements from homes. I'm told that although the ministry has insisted over the years on asking for audited financial statements, some home operators tell us that the ministry personnel don't need an audited financial statement.
Members all know the cost that can be incurred when you have to ask for audited financial statements. Our own riding associations are required to produce those every year, and it can get to be quite substantial if there are any problems.
So my motion simply talks about the financial affairs of the home. It's my understanding that the government should be friendly to this amendment, because its inspectors and the home operators know what financial affairs information is needed, and it is not an audited financial statement. The cost of putting together an audited financial statement every time the government wants one can be up to $50,000, I'm told, when you've got to pay chartered accountants to do it and to stamp it; and much of the information contained therein may contain information about an operator's other financial affairs that are related to maybe the holding company that is the owner of the home or will contain a great deal of detailed information that the government doesn't want, has never wanted, that the inspectors can live without.
I'm just wondering if we can't take this opportunity to have a comment from the parliamentary assistant regarding this, because this has been hammered home to me so many times that I think it's a very important concern.
Mr Wessenger: I'd be very pleased to comment on that. First of all, we should remember that this is a regulation-making power, which means it's permissive, and permissive means "may." I think it's very important that we retain the right to require audits. I think you have to have that right.
The Chair: Shall Mr Wilson's motion carry? All those in favour? Opposed?
Mr Jim Wilson: Could I have it recorded? Is it too late for a recorded vote?
The Chair: Too late. Mr Wilson, yours is the next one.
Mr Jim Wilson: I move that clause 12(s.1) of the Charitable Institutions Act, as set out in subsection 9(8) of the bill, be struck out and the following substituted:
"(s.1) governing service agreements, including the replacement and cancellation and including prescribing provisions that must be contained in all service agreements and matters that must be provided for in all service agreements."
I think the important part is that this amendment speaks to the cancellation of service agreements. Again, it's a matter that's been brought to our attention by those in the know, experts and people who are subject to this legislation, that it would be very helpful that the legislation be very clear in its wording as to the status of service agreements. This is just one more amendment in which we attempt to make it clear that members know the status of the service agreements without any question at all and that requirement be thereof. I'd ask for a recorded vote on this amendment.
Mr Wessenger: If I might just comment, we'll be voting against this because, on the advice I've received, this is a redundant provision. Under our current provisions we're allowed to do this.
The Chair: Mr Hope.
Mr Hope: Mr Chairman, before the recorded vote, I ask for a recess for a few minutes to make sure all members are in here, as it's a request for a recorded vote.
The Chair: Okay. We will recess for five minutes.
Mr Jackson: Actually, according to the standing rules, you're guided.
Mr Hope: According to the standing rules, I'm also entitled to time before a recorded vote.
Mr Jackson: It's 20 minutes automatically. That's all I'm saying.
Mr Hope: Okay, if you want to take 20 minutes, then we're willing to take the 20 minutes.
The Chair: Given the hour, if we are going to recess, we still have a fair amount of work to do. If we are going to be out for 20 minutes under the standing orders, I would suggest that we break for lunch and come back at 1:20, if that's acceptable.
Mr Jim Wilson: I think all parties would agree that we've been moving along in a very cooperative manner with this legislation, far more cooperative, I hedge to say, in many of these clauses than perhaps the interest groups would like to have seen. To have Mr Perruzza admonish members of the Liberal Party a few minutes ago for not holding their hands up long enough and then for him to leave the room and now for the government not to have enough members here for a vote, I find insulting. We have put a lot of time and effort into this, and we don't need the government playing games with regard to votes.
The Chair: I think your comments are very much in order, that we have been working with dispatch and in a very cooperative mode. I think it is important that we ensure that members are here, because we are going through this legislation in a certain order. We will recess now. We will reconvene at 1:20 because we had agreed that we would break at 12:30 for 1:30. We will break at 12:20 and reconvene at 1:20. We are recessed.
The committee recessed at 1222.
AFTERNOON SITTING
The committee resumed at 1333.
The Chair: We will now reconvene the meeting of the standing committee on social development, clause-by-clause on Bill 101, An Act to amend certain Acts concerning Long Term Care.
Our first order of business will be to conduct the vote on the Conservative amendment to clause 12(s.1). Shall Mr Wilson's motion carry?
Mr Jim Wilson: I request a recorded vote.
Ayes
Fawcett, O'Neill (Ottawa-Rideau), Sullivan, Wilson (Simcoe West).
Nays
Hope, O'Connor, Owens, Perruzza, Wessenger, Wiseman.
The Chair: The motion is defeated.
We then move on to the Conservative motion, clause 12(v.1), Mr Wilson.
Mr Jim Wilson: I move that clause 12(v.1) of the Charitable Institutions Act, as set out in subsection 9(10) of the bill, be struck out and the following substituted:
"(v.1) prescribing, for the purpose of section 9.15, the additional documents that the approved corporation must have available for inspection in the approved charitable home for the aged, and governing the notice required to be posted under that section."
I think it's self-explanatory.
The Chair: Any comments?
Mr Wessenger: We'll be voting against this, because we find it's unnecessary.
The Chair: Shall the motion moved by Mr Wilson carry? All in favour? Opposed? The motion is defeated.
We then move on to the government motion which is next, to 12(x.1).
Mr Wessenger: I move that subsection 9(11) of the bill be amended by adding the following clause to section 12 of the Charitable Institutions Act, after clause (x):
"(x.1) governing inspection reports."
The Chair: Any comment? Shall Mr Wessenger's motion carry? Opposed? Carried.
We then move on to another government motion.
Mr Wessenger: I move that clause 12(z) of the Charitable Institutions Act, as set out in subsection 9(12) of the bill, be struck out and the following substituted:
"(z) governing short-stay programs in approved charitable homes for the aged."
The Chair: Any comment? Shall Mr Wessenger's motion carry? All in favour? Opposed? Carried.
The next, again a government motion.
Mr Wessenger: I move that clause 12(z.2) of the Charitable Institutions Act, as set out in subsection 9(12) of the bill, be struck out and the following substituted:
"(z.2) governing the quality management system to be developed and implemented by approved corporations for monitoring, evaluating and improving the quality of the accommodation, care, services, programs and goods provided to residents of approved charitable homes for the aged."
The Chair: Comments? Shall Mr Wessenger's motion carry? All in favour? Opposed? Carried.
The next motion is a Conservative --
Mr Jim Wilson: In light of the previous government amendment, I won't be introducing this.
The Chair: The next motion is a government motion.
Mr Wessenger: I move that clause 12(z.3) of the Charitable Institutions Act, as set out in subsection 9(12) of the bill, be amended by striking out "of which notice must be given" in the third and fourth lines and substituting "which must be set out in the notice". Purely technical.
The Chair: Any comment? Shall Mr Wessenger's motion carry? All in favour? Opposed? Carried.
Again, Mr Wessenger.
Mr Jim Wilson: It's a little more than technical, Mr Wessenger.
Mr Wessenger: I move that subsection 9(12) of the bill be amended by adding the following clauses to section 12 of the Charitable Institutions Act, after clause (z.3):
"(z.3.1) respecting the establishment and conduct of residents' councils;
"(z.3.2) respecting the financial and other information and the assistance that an approved corporation must give to a residents' council and a residents' council assistant."
This is a consequence of amendments of section 9.16 regarding residents' councils. This is stood down.
The Chair: This is stood down. We then move to a Liberal amendment.
Mrs Sullivan: My amendment is identical to that of the government, so I won't read it in.
The Chair: We now have a replacement from the yellow sheets, 9.1, section 13, a government motion.
1340
Mr Wessenger: I move that the bill be amended by adding the following section after section 9:
"9.1 The act is further amended by adding the following section:
"Transition
"13(1) This section applies until the Substitute Decisions Act, 1992 comes into force, and when the Substitute Decisions Act, 1992 comes into force, this section is repealed.
"Identifying person who is lawfully authorized
"(2) For the purposes of the provisions of this act and the regulations relating to approved charitable homes for the aged, a person mentioned in a paragraph of subsection (3) is lawfully authorized to make a decision on behalf of another person concerning that person's personal care if,
"(a) the person on whose behalf the decision is to be made is apparently incapable of making the decision; and
"(b) the person mentioned in the paragraph is,
"(i) at least 16 years old;
"(ii) available;
"(iii) apparently capable of making the decision; and
"(iv) willing to make the decision.
"Same
"(3) For the purposes of subsection (2), the following persons may be lawfully authorized:
"1. The apparently incapable person's committee of the person appointed under the Mental Incompetency Act.
"2. A spouse or partner of the apparently incapable person.
"3. A child of the apparently incapable person.
"4. A parent of the apparently incapable person.
"5. A brother or sister of the apparently incapable person.
"6. Another relative of the apparently incapable person.
"Meaning of `capable' and `incapable'
"(4) For the purposes of this section, a person is capable of making a decision if the person is able to understand the information that is relevant to making the decision and is able to appreciate the reasonable foreseeable consequences of a decision or lack of decision, and a person is incapable of making a decision if the person is not capable of making the decision.
"Meaning of `available'
"(5) For the purpose of this section, a person is available if it is possible, within a time that is reasonable in the circumstances, to communicate with the person and obtain a decision.
"Meaning of `spouse'
"(6) In this section, `spouse' of an apparently incapable person means a person of the opposite sex,
"(a) to whom the apparently incapable person is married; or
"(b) with whom the apparently incapable person is living, or was living immediately before being admitted to the approved charitable home for the aged, in a conjugal relationship outside marriage, if the two persons,
"(i) have cohabited for at least one year,
"(ii) are together the parents of a child, or
"(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act.
"Meaning of `partner'
"(7) Two persons are partners for the purpose of this section if they have lived together for at least one year and have a close personal relationship that is of primary importance in both persons' lives.
"Ranking
"(8) A person mentioned in a paragraph of subsection (3) is not lawfully authorized to make a decision if a person mentioned in an earlier paragraph of subsection (3) is lawfully authorized to make it.
"Same
"(9) If two or more persons mentioned in the same paragraph of subsection (3) would be lawfully authorized to make the decision, they shall select one person from among them, and the person selected is the only one of them who is lawfully authorized to make the decision.
"Decisions on person's behalf
"(10) A person who makes a decision on behalf of an apparently incapable person shall do so in accordance with the following principles:
"1. If the person knows of a wish that the apparently incapable person expressed while capable, the person shall make the decision in accordance with the wish.
"2. If the person does not know of a wish that the apparently incapable person expressed while capable, the person shall make the decision in the apparently incapable person's best interests.
"Best interests
"(11) In deciding what an apparently incapable person's best interests are, the person making the decision shall take into consideration,
"(a) the values and beliefs that the person knows the apparently incapable person held when capable and believes the apparently incapable person would still act on if capable; and
"(b) the apparently incapable person's current wishes, if they can be ascertained."
I'm going to make some initial comments and then I'm going to turn it over to legal counsel for explanation.
The Chair: Before you begin your comments, may I note that this is the motion, once we have dealt with it, that will allow us to go back and deal with the various deferred motions. That's just so people are aware. Mr Wessenger.
Mr Wessenger: My initial comments are that this language is based on language and similar to language in the Consent to Treatment Act. It doesn't contain everything in the Consent to Treatment Act, and there are some differences which I will ask counsel to explain rather than my attempting to do so.
The reason it's felt to be necessary is because there is no provision now for any decision-making by a substitute for a person in a home for the aged or a nursing home, and until the Substitute Decisions Act comes into effect, there's a gap. So it was felt that legislation is needed to cover this gap period, or otherwise you're going to have no one able to make a substitute decision on behalf of an "apparently incapable person."
With that, I'll turn it over to counsel. Probably what needs some explanation, for myself and probably for all committee members, is the use of "apparently incapable person."
Ms Czukar: I can explain that. The use of the term "apparently incapable" is because we didn't want to introduce or attempt to introduce in one section the complete scheme for assessing and having to describe how capacity would be assessed and who could assess it and so on. We wanted to introduce some means of identifying a substitute decision-maker, and the language we've used, which is lawfully authorized throughout the sections that have been stood down, is in order to accommodate the Substitute Decisions Act once it does come into force. So this is an interim provision to give some guidance as to who would be authorized to make decisions and on what basis. We can only use the term "apparently incapable" to give some kind of indication that obviously a substitute decision-maker only comes into play when someone is not able to make the decision himself or herself.
Mrs Sullivan: I can only say that, in my view, the entire approach to substitute consent and determination in this bill has been very badly thought out and that we're faced with an amendment, a motion, that would mimic but would not provide the protections, of the consent to treatment and substitute decisions acts particularly, to people who are residents or potential residents in that there's no appeal with respect to somebody's determination that they are "apparently incapable." You're either capable or you're incapable, and that's when the common law kicks in now and that's when the other laws kick in with respect to a committee or a power of attorney.
What is happening here is that the current law, in every other situation and circumstance with respect to consent, is the law which is being followed until Bill 108 and Bill 109 are proclaimed, except that all of a sudden here, only for those people who are applying or who are residents of long-term care facilities, there is another and different approach to how substitute decision-making will be done on their behalf.
I just think this is an inappropriate way. This bill is going to have to be reopened when Bill 108 and Bill 109 come into force. It certainly will, because the assessment provisions will override this bill.
The other question is that all of a sudden now you have two standards. You have a standard of this bill and then you have a standard that's imposed by Bill 108 and Bill 109 with respect to capacity. Here we have a person who may or may not be, depending on some judgement made by somebody whom we don't know, who may or may not be qualified to make that judgement. "Apparently incapable." I think this is an outrageous approach to substitute decision-making. I think it should be yanked.
Mr Jim Wilson: Actually, I wouldn't mind hearing the explanation again from legal counsel about apparently incapable persons. It does appear to me that we're setting up a whole new type of incapable person, and that indeed worries me. It's bad enough being labelled incapable after you go through the rather stringent tests that are required by the Substitute Decisions Act that we dealt with last year -- and it's yet to come into effect -- without adding insult to injury and telling someone they're apparently incapable and having sort of a quasi-legal grey area.
The Chair: We'll answer that question and then we'll continue, legal counsel.
Ms Czukar: I don't know what more I can add, other than to say that there are many people, obviously, in charitable homes for the aged, which is what we're using and what we're dealing with now, and in the other long-term care facilities who are clearly incapable of making personal care decisions, and this deals with decisions regarding personal care. That's specified in subsection (2), decisions "on behalf of another person concerning that person's personal care."
There is currently no scheme for determining and there's no way of determining who has legal authority to make substitute decisions on behalf of that person unless they have a committee appointed under the Mental Incompetency Act, which is highly unusual for people right now, and it's not clear that under the Mental Incompetency Act currently, a committee has the capacity to make decisions regarding personal care. They are generally concerned with property decisions.
1350
So it's felt that this kind of provision does at least clarify, when it's clear that a person is not capable of making a decision about admission to a home or receiving certain kinds of services or entering into a contract for additional care or that sort of thing, that at least this section would allow the home or the placement coordinator to clearly identify a person who can make a substitute decision, and it also gives guidance to the substitute decision-maker about how to make a decision on that person's behalf.
I'd also just point out that 13(1) specifies that when the Substitute Decisions Act comes into force, this section is repealed. So it's clearly only a transitional provision until then.
Mr Jim Wilson: Mr Chairman, I appreciate the problem the government has gotten itself into and I don't want to see Bill 101 held up because of difficulties with this gap between the Substitute Decisions Act coming into effect and this act coming into effect. However, I just want to point out that what I just heard from legal counsel offends me, and I don't want legal counsel to take it personally, but offends me in the sense that we spent a considerable amount of time as legislators and as a committee learning at first hand that it isn't very clear and that stringent tests are required -- the safeguards -- and that it's a very serious matter when someone is deemed incapable.
Had legal counsel participated in those hearings when we were dealing with the Substitute Decisions Act, I think that a lot of groups made it very clear that this isn't so cut and dried and that a lot of factors which are included in the Substitute Decisions Act, a lot of safeguards, are there because we learned that you can't just walk in, look at someone for a moment and decide that he is clearly not able to make decisions regarding his personal care. I think that to go into this language of "apparently capable" or "apparently incapable" is in fact insulting and probably sets us back a couple of years in terms of all the work that was done around the Substitute Decisions Act.
Mrs Sullivan: I think one of the reasons I find this amendment and its earlier draft so offensive is that there was no debate with respect to this matter during the hearings. No intention of the government with respect to coming forward with these kinds of provisions was put on the table so that they could be explored.
I would suggest to you, by example, that had there been debate -- and unfortunately we have to get into it now, even though we are in clause-by-clause -- it would've been obvious to everybody at this table that for a significant number of people who are residents of homes there is no next of kin, by example, who are included in the ranking of substitute decision-makers. There is nobody. In fact, people in the home, the management of the home, are operating as substitute decision-makers.
There is no determination here and no proposal here as to who shall determine. We've heard counsel speak about "clearly incapable." Who is determining that a person is incapable? What factors are being taken into account that are not spelled out here?
We know and certainly any of us who've spent any time at all dealing with long-term care facilities know that with many of the people who are resident in long-term care facilities, the spouse may well have already been assessed as incapable himself or herself. There are problems that are not addressed with this motion, and I think it is going to be extraordinarily problematic if this passes.
Mrs O'Neill: We're talking about persons, and I don't think we should forget that. We're talking about making judgements about persons, persons who have a certain degree of mental capacity, persons who have feelings, emotions, traditions and values, which are very hard to judge. The seriousness of this is that we're being asked to support this, and we haven't got a clue about who would be doing the assessing, and legal counsel has been very specific. Would they be qualified or not qualified? There's no way I can support this, because I really do feel it is more than offensive to me: I think it's unjust.
I think it would be great for the home to know how to deal with this matter, and there is other legislation coming, but people are suggesting this is a transitional mode. The poor people who are going to be in this transition have no safety net; they have absolutely no protection. There's going to be a whole set of rules that will apply for how many months or years, and they're the only ones caught in the trap. I'm sorry, there's no way I can support this. It is, in my mind, very dangerous.
Mr Wessenger: I would just like to shortly respond to the extent that at the present time there's no one who can substitute-decide for an incapable person unless he happens to be named a committee of the person under the Mental Incompetency Act, and the homes themselves have requested that we clarify in the legislation who may give instructions to the homes. Without this, you're basically leaving the situation where the providers themselves will be making the decisions with respect to the care of the individual.
There's also the problem that we have in the act the provision that there be consent to the admission to a home. If we don't have someone as a substitute to consent on behalf of the incapable person, it does create a somewhat difficult administrative situation. I agree that the ideal would be when the Substitute Decisions Act is implemented; there's no question about that.
The Chair: I'll put the question, then. Shall the government motion carry? All those in favour?
Mrs Sullivan: Recorded vote.
The Chair: A recorded vote has been requested. All those in favour of the government motion?
Ayes
Hope, O'Connor, Owens, Perruzza, Wessenger, Wiseman.
Nays
Fawcett, O'Neill (Ottawa-Rideau), Sullivan, Wilson (Simcoe West).
The Chair: The motion is carried. At this point, then, we'll deal with those that have been deferred. Please go back to section 5. I just want to be clear, with the clerk's help, that I've got these in the right order. The first one that I have is the Liberal proposed amendment 9.5(9.1). No? Okay, I'm sorry. I'll just get some help here. While we get the ones that are deferred sorted out for everybody, we'll just have a short recess.
The committee recessed at 1359 and resumed at 1408.
The Chair: The committee can reconvene. What I will attempt to do here is, first of all, just to go in order of the motions that we will need to deal with, most of which have been deferred, but a couple of which are ones we haven't dealt with.
Under section 4 of the bill, we have a Liberal amendment we haven't dealt with to subsection 9(2). That will be the first one we'll deal with. We will then deal, in order, with government amendment 9.3(1)(e) -- okay? -- then government amendment 9.3(2)(b) and then government amendment 9.3.1. Those are all under section 4.
Then, under section 5, Liberal amendment 9.5(2.2) and Conservative amendment 9.5(5)(a). We will then have a new government amendment -- this is again under section 5 -- to 9.5(8.3.1), then Liberal amendment 9.5(9.1), Liberal amendment 9.5(9.2), government amendment 9.5.1, which is in your yellow sheets, and Liberal amendment 9.5.1.
Mr Wessenger: Then we had one of ours, a new one, 9.5.2. I don't know whether you have that one.
The Chair: Just one second. I'm sorry, government amendment 9.5.2. Okay? Mr Wilson.
Mr Jim Wilson: Could you quickly read off the PC amendment you're expecting, just the number again?
The Chair: Right.
Mr Jim Wilson: There was one mentioned.
The Chair: Clause 9.5(5)(a). It had been stood down.
We have then 9.5.1, both a government and a Liberal amendment. After that, government amendment, again section 5, 9.12; Liberal amendment, 9.12(2) and (3); Conservative amendment, 9.14(1)(a); government amendment, 9.14; government amendment, 9.16 to 9.21; Liberal amendment, 9.16 to 9.20. Then under section 7, Liberal amendment, 10.1(2)(b) and, finally, a government amendment, 12(b.6).
Now we will go back and deal with those and please call upon the Chair to stop and make sure we get this right. The first one we'll deal with then, Ms Sullivan, will be the Liberal amendment, which has been distributed, to section 4 of the bill --
Interjection.
The Chair: I'm sorry, Mr Wessenger, did you --
Mr Wessenger: Could I have an opportunity to identify those motions we'll be supporting? The first one is 9(2).
The Chair: It hasn't been presented yet.
Mr Wessenger: Oh, it hasn't been presented yet; it hasn't been moved. Okay.
The Chair: Ms Sullivan, would you put your motion.
Mrs Sullivan: I move that subsection 9(2) of the Charitable Institutions Act, as set out in section 4 of the bill, be struck out and the following substituted:
"Service agreement
"(2) No payment shall be made under subsection (1) unless,
"(a) the approved corporation receiving the payment is a party to a service agreement with the crown in right of Ontario that relates to the home; and
"(b) the service agreement complies with this act and the regulations."
Mr Chairman, this is a technical amendment to clean up wording in the act to ensure it's the service agreement that complies with the act or the regulation and not the home. It's a wording change.
Mr Wessenger: We'll be voting in favour of this amendment.
The Chair: I'll put the motion then. Shall the Liberal amendment carry? All in favour? Opposed? Carried.
I would then put section 4. No, I can't do that yet. Wait a minute. I'm sorry, I'm ahead of myself. I'm getting excited here. We have a few to deal with.
Government amendment 9.3(1)(e): We have discussed this, so I'm simply going to put them. Shall the government motion carry? All those in favour? Opposed? Carried.
Government motion 9.3(2)(b): Shall the motion carry? Opposed? Carried.
Government motion 9.3.1: Shall the motion --
Mr Wessenger: Would it be possible to withdraw this motion?
The Chair: Anything is possible.
Mr Wessenger: We've already passed --
Mr Jim Wilson: Mr Chairman, I can't find half of these in my file and it would be a little unfair to vote without seeing them again. I'd asked the clerk prior to the recess to perhaps give us copies of these again because they're all over my desk.
The Chair: All right. Let's just take a brief pause and we'll dig those out so we can make sure we have them in front of us. Okay? A two-minute pause.
The committee recessed at 1415 and resumed at 1428.
The Chair: We'll reconvene. The clerk is just distributing a set of the stood-down amendments. If I could just remind people that we have dealt with the Liberal amendment subsection 4.9(2), with the government 9.3(1)(e) and 9.3(2)(b). I called government amendment 9.3.1 and just to confirm, Mr Wessenger, you said?
Mr Wessenger: I had indicated that we wished to withdraw this motion because it's already been covered by existing Liberal motions.
The Chair: Is that clear then? Subsection 9.3(1) is withdrawn. Now that then covers all of the amendments under section 4, so I will put the question: Shall section 4 of the bill, as amended, carry? In favour? Opposed? Carried.
We are now at section 5, the Liberal amendment 9.5(2.2). Ms Sullivan has moved that. Shall that motion carry? All in favour? Opposed? It is defeated.
Then the Conservative motion of Mr Wilson, which was 9.5(5)(a). Shall Mr Wilson's motion carry? All those in favour? Opposed? Defeated.
I need just a bit of guidance here. We passed a government motion, 9.5(5) to (8.6). Ms O'Neill, help me again. What do we call this?
Mrs O'Neill: Gold.
The Chair: The gold sheet you have, which is the amendment to section 5 of the bill, subsection 9.5(8.3.1), is a new government amendment. So if I could ask Mr Wessenger to first read it and then explain it.
Mr Wessenger: I move that paragraph 2 of subsection 9.5(8.3.1) of the Charitable Institutions Act, added to section 5 of the bill by the government motion relating to subsections 9.5(5) to (8.6) of the Charitable Institutions Act, be struck out and the following substituted:
"2 An assessment or information relating to the person's requirements for medical treatment, health care or other personal care."
I'll ask counsel to explain the necessity for this one.
Ms Czukar: The reason this one was introduced was that it was pointed out to me by legislative counsel last night, after we had accepted this amendment, which was brought forward by one of the opposition parties, that it did read "medical treatment, health care or personal care." There's a problem with using the term "personal care" here because it's used in the substitute decision-making section where we've said decisions concerning personal care, and we wanted to make it clear that personal care includes medical treatment and health care, so we've said "medical treatment, health care or other personal care" to make it clear that they're all included in personal care and any substitute would make a decision with respect to all of those, which are considered personal care for that purpose. So it's a clarifying amendment suggested by legislative counsel.
The Chair: Any comment? If not, I'll put the motion. Shall the -- sorry, Ms Sullivan.
Mrs Sullivan: This amends a very long motion with respect to admission etc; am I correct?
Ms Czukar: That's right.
Mrs Sullivan: You have used in this amendment, then, under (8.3.1) the word "assessment," indicating that it is the placement coordinator who shall make all determinations. So what you are now saying is that for the apparently incapable person, it is the placement coordinator who makes that assessment?
Ms Czukar: No, it doesn't change the substance of it. It's just a clarification of the use of the term "personal care." The amendment that was introduced yesterday in (8.3.1) said medical treatment or health care or personal care.
Mr Wessenger: We've added "other."
Ms Czukar: As a matter of statutory interpretation, it could be taken, because we've used decisions regarding personal care in the substitute decisions section, that if you use that term here it means something different. Legislative counsel might be able to add something to the explanation of the interpretation problem. It's not a change in substance. We don't intend it as a change in substance; we intend it to be inclusive.
The Chair: Perhaps we could ask legislative counsel to comment.
Ms Gottheil: What was passed yesterday had originally been numbered 9.5(7.1) and in paragraph 2 there was a reference to "medical treatment, health care or personal care." The only change today is we've said "medical treatment, health care or other personal care," just to show that medical treatment and health care would be a form of personal care, too, and that is consistent with the way we've used the words "personal care" elsewhere in this bill.
Mrs Sullivan: Once again, that was my amendment, I believe.
The Chair: Yes.
Mrs Sullivan: How can the government now amend my motion? Is that correct? Counsel just indicated that this is renumbered from an amendment that was put forward yesterday as 9.5(7.1).
The Chair: Ms Sullivan, what we are amending was a government motion.
Mrs Sullivan: Could we have a reclarification of the number, then, of the government motion which is now renumbered?
The Chair: If I understand correctly, what we have amended here, Ms Sullivan, is that yesterday we passed 9.5(5) to (8.6). That was a government motion. This amendment is to that, so it is a government amendment to a motion they had presented and that was passed yesterday.
Mrs Sullivan: There is no (8.3.1) in the amendment which was passed yesterday.
The Chair: Well, there was. They have changed it.
Mrs Sullivan: No, there isn't.
The Chair: The Liberal 9.5(7.1) was taken and became (8.3.1) with a change of wording. Mr Wilson has a question, but, Ms Sullivan, is that clear?
Mrs Sullivan: I guess I'll check Hansard.
The Chair: Can I ask legislative counsel, who I think understands that as clearly as anybody -- do you want to explain it better than I did?
Ms Gottheil: I think what happened yesterday was that the government created (8.3.1). It changed the wording of the Liberal 9.5(7.1), and (8.3.1) became a subsection of 9.5. So this is an amendment to the government motion.
Mrs Sullivan: I understand now, having had some special counsel from counsel, but the committee never received a copy of that amendment. So that's why I was confused when the numbering was changed of the one which the government adjusted from my motion which was put forward yesterday. We did not receive a copy of that.
The Chair: I think, because we have to be clear on this, I will ask the clerk to get a copy of this so that everybody has it, and we will take a short recess in order to get that.
The committee recessed at 1438 and resumed at 1440.
The Chair: I think we now have a copy. As I look at this and recall the discussion yesterday, this arose out of the discussion around both the government motion 9.5(5) to (8.6) and the Liberal amendment 9.5(7.1). This has been redone and now finds itself within this new section 9.5(8.3.1).
I think we've tracked it down, and if I might then put the question, shall the government motion carry? Carried.
The next deferred motion that was stood down was the Liberal amendment 9.5(9.1). Shall Ms Sullivan's motion carry? All in favour? Opposed? Defeated.
Again, a Liberal -- I'm sorry.
Mr Wessenger: Just a minute, Mr Chairman. Maybe we're looking at the wrong motion -- the veterans' one I guess should be withdrawn, I think.
Mrs Sullivan: Yes, just hang on so that we can flip forward quickly. This is subsection 9.1?
The Chair: Yes, 9.5(9.1).
Mrs Sullivan: I do not intend to put this motion forward. I guess I've already read it in, so I have to withdraw it.
The Chair: Okay. If I could ask the clerk for guidance. We did not mean to defeat it. Do we have to do anything -- I think unanimous consent to undefeat it and to allow Mrs Sullivan to withdraw it? Agreed. Mrs Sullivan, 9.5(9.1) is now withdrawn.
We then go to the next amendment, which is 9.5(9.2). Ms Sullivan, were you going to withdraw that one as well, 9.5(9.2)?
Mrs Sullivan: "Preference for persons discharged from facilities," is that what's at the top of that?
The Chair: Yes.
Mrs Sullivan: No, I don't want to withdraw that.
The Chair: Shall Mrs Sullivan's motion carry? All in favour? Opposed? Motion defeated.
We then have a government motion 9.5.1, which I believe is new. I would ask the parliamentary assistant to read that into the record. That is a yellow sheet. Everyone should have it.
Mr Wessenger: I move that section 5 of the bill be amended by adding the following section to the Charitable Institutions Act, after section 9.5:
"Information to approved corporation
"9.5.1(1) A placement coordinator who authorizes a person's admission to an approved charitable home for the aged shall give to the approved corporation maintaining and operating the home the information mentioned in a paragraph of subsection (2) if,
"(a) the placement coordinator has the information mentioned in the paragraph; and
"(b) consent to the disclosure of the information to the approved corporation is given by,
"(i) the person whose admission is authorized; or
"(ii) the person, if any, who was lawfully authorized to consent to admission to the approved charitable home for the aged on behalf of the person whose admission is authorized.
"Same
"(2) The information referred to in subsection (1) is the following:
"1. Information about assessments of the person whose admission is authorized.
"2. Information about the person's medical history.
"3. Information about the person's social and other care requirements.
"4. The name and address of the person, if any, who was lawfully authorized to consent to admission to the approved charitable home for the aged on behalf of the person whose admission is authorized."
The Chair: Commentary, Mr Wessenger?
Mr Wessenger: Perhaps I'll ask counsel to give the reason for this.
Ms Czukar: This was drafted as an alternative to an amendment that was put forward by Mrs Sullivan, I believe, regarding the same topic. This was just worked out with legislative counsel in light of other amendments that have been made and to make it more certain.
Mrs Sullivan: Mr Chairman, we'll support this motion and subsequently withdraw the one which was stood down.
Mr Jim Wilson: I just want to indicate my support for this motion, Mr Chairman. I think it expands the scope of the information that has to be provided to a home from the placement coordinator, and does so in a very commonsense way.
The Chair: Thank you. I'll put the motion. Shall the government motion carry? All in favour? Opposed. Carried.
Ms Sullivan, you've withdrawn your stood-down motion. That is then withdrawn.
We then have another new motion which is government motion 9.5.2, parliamentary assistant.
Mr Wessenger: I move that section 5 of the bill be amended by adding the following section to the Charitable Institutions Act, after section 9.5.1:
"Preference for veterans
"9.5.2 The minister shall ensure that preference is given to veterans for access to beds that,
"(a) are located in approved charitable homes for the aged for which funding is provided under an agreement between the government of Ontario and the government of Canada relating to veterans; and
"(b) are designated by the minister as veterans' priority access beds."
The Chair: Commentary?
Mr Wessenger: I think we've been struggling for some time to come up with the appropriate language to deal with the issue of the priority access beds in the Perley hospital, and we believe this is the appropriate language.
Mr Jim Wilson: I just want to say that we're pleased to see this amendment come forward. It's been quite a few weeks now, putting pressure on the government so that it would come forward like this. I don't think it's a cure-all, but it's better than what we were offered prior to this, which was simply an exchange of a letter between the provincial Health minister here in Ontario and Kim Campbell, the federal Minister of Defence. I'm certainly pleased to see that the government has seen fit to concede to the request of the Royal Canadian Legion and put in this legislation some safeguard to ensure that there is a preference of access for veterans.
Mrs O'Neill: I just wanted to verify, does this amendment, which I agree with, guarantee within the existing contract, which we were shown, though I have never received a copy but I had seen it being flashed around this committee, between the feds and provincial governments on this issue, particularly the Perley and the Rideau Veterans, does this act, what should I say, beef up that contract which the veterans found was wanting and did not follow what they considered were the federal regulations?
Mr Wessenger: I think it's fair to say that this amendment reinforces the interpretation given by the minister to the agreement in the sense that it's in line with what we've indicated, that we believe the rights do exist under the agreement. We have now put this into legislation and it reinforces that.
The Chair: Ms O'Neill, just on your other point, a copy of the agreement was sent to all members and you should have received it; if not, I'll make sure that you do.
Mrs O'Neill: I have it and I think it's something I've been looking for, but it's possible that I haven't got it yet.
The Chair: If need be, I'll give you mine.
Mrs O'Neill: I will check with my staff.
Mrs Sullivan: I withdrew the motion that I had put forward with reference to this section in favour of the wording which counsel has developed here. I think that the use of the word "minister" rather than "placement coordinator" having the obligation of ensuring that the contract is met is a significant improvement.
I think this also allows for the Department of Veterans Affairs in Ottawa to become, in fact, the placement coordinator for veterans' beds. As I speak to this, I want to say that there appears to be some confusion in the third party's motion, which talked about the legion guaranteeing these beds, and the contractual relationship is between the Department of Veterans Affairs and the provincial ministry. This reflects that contract and I'm pleased to support it.
1450
The Chair: I'll put the motion then. Shall the government motion carry? All those in favour? Opposed? Carried.
We would then go to government motion 9.12. Shall the motion carry? Opposed? Carried.
Still under section 5, the Liberal amendment, 9.12(2) and (3). Ms Sullivan, was that to be withdrawn?
Mrs Sullivan: I think I'd like to proceed with a vote on this, Mr Chairman, because while the previous motion covers half of what my motion was, it doesn't cover the second half with respect to implementation.
The Chair: I'll put the motion then, and this is, again, 9.12(2) and (3). Shall the motion carry? All in favour? Opposed? Okay, it's defeated.
We then go to Mr Wilson's motion, 9.14(1)(a). Shall Mr Wilson's motion carry? All those in favour? Opposed? Defeated.
Government amendment 9.14: Shall the motion carry? All in favour? Opposed? Carried.
Mrs Sullivan: Could you slow down a second, please, Mr Chairman?
The Chair: Yes, sorry. I will slow down.
Okay, that was 9.14, and I'll just tell you where we're going. The next one will be government motion, 9.16 to 9.21, to be followed by the Liberal motion, 9.16 to 9.20. Those were both stood down. Do you have those to hand?
Mr Wessenger: The residents' council.
The Chair: Okay? are you ready?
Mrs Sullivan: The residents' council, Mr Chairman, yes. I stand that down because it's fundamentally covered by the government motion.
The Chair: Okay, sorry. I'll let you do that. We'll just deal with the government amendment first.
Mr Jim Wilson: Can I ask a question on the government amendment?
The Chair: Yes.
Mr Jim Wilson: I'm interested to know from the parliamentary assistant, as soon as I find the section -- it would be on page 3 of the amendment 9.18(c)(ii).
The Chair: Can you just repeat that?
Mr Jim Wilson: Sorry, 9.18(c)(ii), which is on page 3, roman numeral (ii), and it starts off: "Review the allocation of money for accommodation, care, services, programs and goods provided in the home." I would like to know exactly what the word "review" means and what the scope of the intent is.
Mr Wessenger: I'll ask legal counsel.
Ms Czukar: These are the powers of the residents' council, so these are items that the residents' council can do. These are taken from the residents' council powers in the Nursing Homes Act and there's currently a provision which allows residents' councils to review the allocation of money for services provided in the home. We've simply changed the wording here to reflect accommodation, care, services, programs and goods, which we've used throughout the bills, to describe what is to be provided under the service agreement and what payments are to be made for. So the scope of it is that they can review how money is allocated for those things with representatives of the corporation to the same extent it's done with nursing home operators now.
Mr Jim Wilson: I just want to make sure that "review" doesn't in any way give the members of the residents' council the ability to instruct the administration of the home in any way. It's simply a review.
Ms Czukar: I would think "review" in that context would have its ordinary meaning, which would simply mean "review" and not anything more than that.
The Chair: Shall the government's motion carry? Opposed? Carried.
Mrs Sullivan, you will then withdraw your motion?
Mrs Sullivan: Okay.
The Chair: Then we move to Mrs Sullivan's motion, clause 10.1(2)(b).
Mrs Sullivan: Mr Chairman, I believe that is covered now with subsequent government amendments, so I will withdraw that.
The Chair: Okay, that is withdrawn.
Shall section 5, as amended, carry? Carried.
We have dealt with section 6.
Shall section 7 carry? Carried.
I believe we carried section 8, at least we should have.
We are then left with the government amendment, clause 12(b.6). Shall the government motion carry? Opposed? Carried.
I'm buried in paper here. Somewhere I had another document. Here we are.
Mr Jim Wilson: Mr Chairman, on a point of information: I really don't recall actually voting just a moment ago. Why was clause 12(b.6) struck? I'd like it on the record.
The Chair: It was passed.
Mr Jim Wilson: It was passed to strike it.
The Chair: No. It had been stood down and we just passed it.
Mr Jim Wilson: But it was passed to strike it.
The Chair: Oh, I'm sorry, it was struck out.
Mr Jim Wilson: Could you explain for the record why it was necessary?
Ms Czukar: Clause 12(b.6) is a regulation-making power giving us the power to make regulations requiring and governing consent by or on behalf of persons. This regulation-making power has now been replaced with the transitional section regarding substitute decision-making. So instead of trying to put rules regarding substantive rights about consent and substitute decision-making in the regulations, which would have been very difficult, we've put it in the act.
The Chair: We have then in section 9 a government motion, clauses 12(z.3.1) and (z.3.2). Shall the government motion carry? Opposed? Carried.
Now, says he carefully, shall section 9 of the bill, as amended, carry? Carried.
Mr Wessenger: Did we do 10?
The Chair: No, we didn't do 10, right?
Mr Wessenger: I don't think so. I don't remember doing it.
The Chair: Shall section 10, as in the bill, carry? Carried.
Where are we?
Mr Wessenger: Section 11. We haven't done that yet.
Interjection: Do we have amendments?
The Chair: Yes, we have amendments. So we have completed the Charitable Institutions Act. I'm going to call a short recess as we organize our approach to the remainder of the bill. I would ask everyone to stay with us. We'll collect our paper and get organized. We'll have a short recess.
The committee recessed at 1501 and resumed at 1513.
The Chair: The committee will reconvene. We are now beginning to deal with part III of the bill, Homes for the Aged and Rest Homes Act. We are dealing with part III, section 11, and the first two amendments I have are Liberal amendments. Ms Sullivan? I will be extemporaneous for a few minutes as she gets a cup of coffee. However, I will not sing.
Mr Jackson: For which we are eternally grateful.
Mrs Sullivan: Mr Chairman, I'll be withdrawing that motion.
The Chair: Okay. You also had the next one.
Mrs Sullivan: I will proceed with this one.
I move that subsection 11(1) of the bill be amended by adding the following definition to the Homes for the Aged and Rest Homes Act:
"`resident' means a person admitted to and lodged in a home;"
The Chair: Just to note again, we're deferring the votes but we can have the debate.
Mr Wessenger: I was just going to indicate that we'll be supporting this one because this is similar to the motion that --
The Chair: In that case --
Mr Jim Wiseman (Durham West): We can vote on that one.
Mr Wessenger: Yes, we could vote on that one. Why don't we?
The Chair: All right. All in favour? Opposed? Carried.
The next is a government motion, Mr Wessenger.
Mr Wessenger: I move that the bill be amended by adding the following section after section 11:
"11.1 The act is amended by adding the following section:
"Fundamental principle
"1.1 (1) The fundamental principle to be applied in the interpretation of this act, the regulations and a service agreement relating to a home is that a home is primarily the home of its residents and, as such, it is to be operated in such a way that the physical, psychological, social, cultural and spiritual needs of each of its residents are adequately met and that its residents are given the opportunity to contribute, in accordance with their ability, to the physical, psychological, social, cultural and spiritual needs of others.
"Residents' bill of rights
"(2) A municipality maintaining and operating a home, the municipalities maintaining and operating a joint home and the board of management of a home shall ensure that the following rights of residents of the home are fully respected and promoted:
"1. Every resident has the right to be treated with courtesy and respect and in a way that fully recognizes the resident's dignity and individuality and to be free from mental and physical abuse.
"2. Every resident has the right to be properly sheltered, fed, clothed, groomed and cared for in a manner consistent with his or her needs.
"3. Every resident has the right to be told who is responsible for and who is providing the resident's direct care.
"4. Every resident has the right to be afforded privacy in treatment and in caring for his or her personal needs.
"5. Every resident has the right to keep in his or her room and display personal possessions, pictures and furnishings in keeping with safety requirements and rights of other residents of the home.
"6. Every resident has the right,
"i. to be informed of his or her medical condition, treatment and proposed course of treatment,
"ii. to give or refuse consent to treatment, including medication, in accordance with the law and to be informed of the consequences of giving or refusing consent,
"iii. to have the opportunity to participate fully in making any decision and obtaining an independent medical opinion concerning any aspect of his or her care, including any decision concerning his or her admission, discharge or transfer to or from a home, and
"iv. to have his or her medical records kept confidential in accordance with the law.
"7. Every resident has the right to receive reactivation and assistance toward independence consistent with his or her requirements.
"8. Every resident who is being considered for restraints has the right to be fully informed about the procedures and the consequences of receiving or refusing them.
"9. Every resident has the right to communicate in confidence, to receive visitors of his or her choice and to consult in private with any person without interference.
"10. Every resident whose death is likely to be imminent has the right to have members of the resident's family present twenty-four hours per day.
"11. Every resident has the right to designate a person to receive information concerning any transfer or emergency hospitalization of the resident and, if a person is so designated, to have that person so informed forthwith.
"12. Every resident has the right to exercise the rights of a citizen and to raise concerns or recommend changes in policies and services on behalf of himself or herself or others to the residents' council, staff of the home, government officials or any other person inside or outside the home, without fear of restraint, interference, coercion, discrimination or reprisal.
"13. Every resident has the right to form friendships, to enjoy relationships and to participate in the residents' council.
"14. Every resident has the right to meet privately with his or her spouse in a room that assures privacy and, if both spouses are residents in the same home, they have a right to share a room according to their wishes, if an appropriate room is available.
"15. Every resident has a right to pursue social, cultural, religious and other interests, to develop his or her potential and to be given reasonable provisions by the home to accommodate these pursuits.
"16. Every resident has the right to be informed in writing of any law, rule or policy affecting the operation of the home and of the procedures for initiating complaints.
"17. Every resident has the right to manage his or her own financial affairs if the resident is able to do so and, if the resident's financial affairs are managed by the home, to receive a quarterly accounting of any transactions undertaken on his or her behalf and to be assured that the resident's property is managed solely on the resident's behalf.
"18. Every resident has the right to live in a safe and clean environment.
"19. Every resident has the right to be given access to protected areas outside the home in order to enjoy outdoor activity, unless the physical setting makes this impossible.
"Further guide to interpretation
"(3) Without restricting the generality of subsection (1), this act, the regulations and a service agreement relating to a home shall be interpreted so as to advance the objective that the resident's rights set out in subsection (2) be respected.
"Deemed contract
"(4) A municipality maintaining and operating a home, the municipalities maintaining and operating a joint home and the board of management of a home shall be deemed to have entered into a contract with each resident of the home or joint home, as the case may be, agreeing to respect and promote the rights of the resident set out in subsection (2)."
This is in line with the bill of rights that was passed with respect to charitable homes for the aged.
Mrs Sullivan: We'll be supporting this motion.
1520
The Chair: Mr Jackson, same comment? Given that this would appear to be having the support of everyone, I will put this. Shall the government motion carry? Carried.
I would then ask, the Conservative and Liberal motions will be stood down, is that correct, as per our previous discussion?
Mrs Sullivan: Yes. Since the government accepted our recommendation, we'll not be putting our motion forward.
Mr Jim Wilson: The same, Mr Chairman.
Mr Wessenger: It's withdrawn. It should be indicated, by the way.
The Chair: Yes, withdrawn. I would ask then, shall section 11, as amended, carry? Carried.
We then move on to section 12. The first amendment is, I believe, the Liberal amendment 18(2) and (2.1).
Mrs Sullivan: I think there's a government motion which precedes mine.
The Chair: Yes, I think there were some, if people want to just doublecheck. The motion we're going to deal with right now is the Liberal motion which is in our original book.
Mrs Sullivan: No. I will not be putting that forward.
The Chair: So that is withdrawn.
Mr Jim Wilson: Which one is that?
The Chair: Subsection 18(2.1) is withdrawn. Mrs Sullivan, you had one as well?
Mrs Sullivan: I move that section 18 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be amended by adding the following subsection:
"Qualifications
"(2.2) No person or entity may be designated by the minister as a placement coordinator unless the person or entity meets the qualifications prescribed by the regulations."
Mr Wessenger: Maybe we could ask that the vote be deferred on this one.
The Chair: Okay. We'll defer the vote. Are there any comments at this time?
Mrs Sullivan: The debate here would be as it was in the previous bill.
Mr Jim Wilson: I thought the government, in the regulations section of the previous bill, attempted to deal with this point. Am I correct?
Mr Wessenger: What we've put in the regulations -- we gave the power to make regulations with respect to the qualifications and requirements of the operation of the placement coordination. So yes, we gave the permissive power to bring that in.
The Chair: The next motion is the Conservative motion. Mr Wilson.
Mr Jim Wilson: Before I introduce this, not having had time to thoroughly review the government's pre-drafting of amendments for this bill, I would ask the parliamentary assistant if the wording we dealt with on this point in the previous bill has been incorporated into the government's amendment. Remember we were talking about --
Mr Wessenger: I think I'll ask counsel to clarify.
The Chair: Just to make sure we're all again with the same -- this is the new yellow sheet.
Mr Jim Wilson: Perhaps I'll read it in, Mr Chairman.
The Chair: You're going to read it in?
Mr Jim Wilson: If you don't mind.
The Chair: Yes. No.
Mr Jim Wilson: I move that clause 18(5)(a) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"(a) within the six months preceding admission, a placement coordinator has determined that the person is eligible for admission to a home; and"
The Chair: That is your amendment. Mr Parliamentary Assistant, if you would then --
Mr Wessenger: I'll ask counsel to confirm how it's included in the --
Interjections.
Mr Wessenger: We haven't moved ours yet.
Mr Jim Wilson: Oh. How about for information right now.
Mr Wessenger: For information, yes.
Mr Jim Wilson: Just refer me to it perhaps.
Ms Czukar: There's an amended government motion, and in subsection (8.4) it includes the notion of within the six months preceding authorization, which was the wording we had agreed on yesterday when the amended motion was read in.
Mr Jim Wilson: With that on the record, Mr Chairman, I'll withdraw my motion.
The Chair: Okay. Mr Wilson, I must say, has not moved --
Mr Jim Wilson: No, I moved it.
The Chair: I'm sorry, you moved it and withdrew it. Is that --
Mr Jim Wilson: Yes.
The Chair: All right, you moved it and withdrew it. Perhaps, Mr Wilson, do you want to put your amendment to 18(6) and then I'll go to the government to deal with its, which is 18(5) to (8.6).
Mr Jim Wilson: I move that subsection 18(6) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Where admission required
"(6) The committee of management or the board of management, as the case may be, of a home shall admit a person who meets the requirements of subsection (5), unless,
"(a) the person requires ventilation therapy or deep bronchial suctioning;
"(b) the person requires onsite surgery;
"(c) the person requires epidural anaesthesia;
"(d) the home is unable to meet the person's care requirements; or
"(e) a ground for refusal of admission prescribed by the regulations exists."
When I introduced a very similar amendment to the Charitable Institutions Act, the parliamentary assistant responded that if any of the conditions (a) through (d) existed, the person wouldn't be eligible for residency anyway. Subsequent to that, the government did make some amendment to its own amendments, and I would be prepared once again to hear the government's argument against my motion.
Mr Wessenger: If I remember correctly, items (a) to (c) in the motion put by Mr Wilson are areas where the person would not be eligible for admission to the facility.
Mr Jim Wilson: Can I just interrupt? How am I sure of that? Operators still tell me that, while that's fine for you to say that -- point me to something that assures me that these homes aren't going to be required to provide this type of medical intervention.
Mr Wessenger: It will be included in the eligibility provisions in the regulations.
Mr Jim Wilson: So it will be.
Mr Wessenger: Yes.
Mr Jim Wilson: So I'm not totally out of my mind to suggest that perhaps this amendment is a good safeguard to have in there?
Mr Wessenger: I have assurance from ministry staff that it will be included in the manual.
Mr Jim Wilson: Well, I'll be carrying around my Hansard for quite a few months yet.
The Chair: We'll defer the vote on that. We'll come back to that in terms of the vote, but we would then move to the government amendment 18(5) to (8.6).
Mr Wessenger: Or is it (8.7)?
The Chair: Sorry, it's now (8.7), if I can make that change, and to help as we go along here, people perhaps could just pull the ones that we have deferred. There are two that have been deferred. This is the second one.
1530
Mr Wessenger: I move that subsections 18(5) to (8) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Admission
"(5) The committee of management or the board of management, as the case may be, of a home shall not admit a person unless the person's admission to the home is authorized by the placement coordinator designated for the home under subsection (3), and shall admit a person whose admission to the home is so authorized.
"Applications to placement coordinator
"(6) A person may apply for a determination by a placement coordinator respecting the person's eligibility for admission to a home and for authorization of admission with respect to such home or homes as the person selects.
"Assistance
"(7) A placement coordinator who determines that a person is eligible for admission shall, if the person wishes, assist the person in selecting the home or homes with respect to which the person will apply for authorization of admission.
"Person's preferences
"(8) In assisting a person under subsection (7), the placement coordinator shall consider the person's preferences relating to admission, based on ethnic, spiritual, linguistic, familial and cultural factors.
"Determination respecting eligibility
"(8.1) A placement coordinator shall determine whether a person is eligible for admission to a home only if the person applies for the determination in accordance with the regulations.
"Determination respecting authorization
"(8.2) The placement coordinator designated for a home under subsection (3) shall determine whether to authorize a person's admission to the home only if the person applies for authorization of admission with respect to the home in accordance with the regulations.
"Compliance with act and regulations
"(8.3) A placement coordinator shall make all determinations respecting eligibility for admission and all determinations respecting authorization of admission in accordance with this act and the regulations.
"Assessments, etc. to be taken into account
"(8.3.1) In making a determination respecting a person's eligibility for admission, a placement coordinator shall take into account any of the following which are provided to the placement coordinator:
"1. An assessment of the person made by a health practitioner relating to the person's impairment or capacity.
"2. An assessment or information relating to the person's requirements for medical treatment, health care or other personal care.
"Conditions of authorization
"(8.4) The placement coordinator designated for a home under subsection (3) may authorize the admission of a person to the home only if,
"(a) the placement coordinator or another placement coordinator has determined, within six months preceding authorization, that the person is eligible for admission to a home;
"(b) the committee of management or the board of management, as the case may be, of the home to which the person's admission is to be authorized approves the person's admission to the home; and
"(c) the person consents to being admitted to the home.
"Approval
"(8.5) The committee of management or the board of management, as the case may be, of a home shall approve a person's admission to a home unless,
"(a) the home lacks the physical facilities necessary to meet the person's care requirements;
"(b) the staff of the home lack the nursing expertise necessary to meet the person's care requirements; or
"(c) circumstances exist which are prescribed by the regulations as being a ground for withholding approval.
"Written notice
"(8.6) A committee of management or a board of management, as the case may be, that withholds approval for the admission of a person to a home shall give to the person, the director and the placement coordinator designated for the home under subsection (3), a written notice setting out the ground or grounds on which the committee or board, as the case may be, is withholding approval and a detailed explanation of the supporting facts.
"Alternative services
"(8.7) A placement coordinator shall suggest alternative services or make appropriate referrals on behalf of an applicant if,
"(a) the placement coordinator determines that the applicant is not eligible for admission to a home; or
"(b) the placement coordinator determines that the applicant is eligible for admission to a home but does not authorize their immediate admission."
I might comment that this is in accordance with all the amendments that were made to the original provisions under the Charitable Institutions Act.
The Chair: Any commentary on that? Ms Sullivan.
Mrs Sullivan: Mr Chairman, I note that the amendments which created some confusion in the previous section of the bill we are considering have all been taken into account in one place, and we'll be supporting this motion.
The Chair: Mr Wilson, I just wanted to give you the opportunity to comment.
Mr Jim Wilson: Essentially, we'll be supporting this motion. I guess it's like being partially pregnant; you either have to support it or not. But we'll be supporting it, given that I think the government has incorporated a number of thoughts we had, including the next PC amendment, I note, regarding assessments; "taking into account" incorporates the PC amendment. It's not our preferred option, but I think it's the best we're going to do.
The Chair: With that note of agreement, would members like me to put this motion? Shall the government motion carry? All in favour? Carried.
We will then have the Liberal motion.
Mrs Sullivan: We don't need to proceed with that, so I won't put it.
The Chair: Okay. Then I think what I say is that it is not moved. Ms Sullivan, you have two following, subsections 18(6) and 18(7)?
Mrs Sullivan: I don't want to proceed with 18(6) either.
The Chair: Okay, then we'll deal with subsection 18(7).
Mrs Sullivan: I move that subsection 18(7) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Determination regarding eligibility
"(7) A placement coordinator to whom application has been made in accordance with the regulations for a determination respecting a person's eligibility for admission to a home shall, in accordance with the regulations, determine whether the person is eligible for admission and, if the placement coordinator determines that the person is eligible, determine a priority level for the person's admission."
Mr Wessenger: We ask that the vote be deferred on that.
The Chair: So we will defer the vote on subsection 18(7).
We would then go to the Conservative motion, subsection 18(7.1).
Mr Jim Wilson: I won't be introducing that motion, given that the government's previous amendment incorporated it somewhat.
The Chair: All right, that is not moved. Then we'll return to Ms Sullivan, subsection 18(7.1).
Mrs Sullivan: The government has incorporated this amendment into its motion. It would ensure that assessments of the person's impairment or capacity and his requirements for medical health care and for personal care are taken into account in his placement. We supported the government's amendment, so I will not be putting this one forward.
The Chair: Okay, this is not moved. Then the Conservative motion, subsection 18(8).
Mr Jim Wilson: I move that subsection 18(8) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Priority and authorization
"(8) Subject to subsection (10), if the placement coordinator designated for a home under subsection (3) receives an application, made in accordance with the regulations, for authorization of a person's admission to the home, the placement coordinator shall assign to the person a priority rating and, taking the priority rating into account, shall determine in accordance with the regulations whether to authorize the person's admission to the home.
"Assigning priority rating
"(8.1) The priority rating assigned to a person under subsection (8) shall be based on the immediacy of the need for admission of the other persons applying for admission.
"Priority rating for spouse
"(8.2) Despite subsection (8.1), a person applying for admission to a home in which his or her spouse is resident shall be assigned, for the purposes of admission to the home, a priority rating that is higher than the priority rating assigned to the applicants for admission to the home who do not have spouses resident in the home.
"Priority rating for veteran
"(8.3) Despite subsections (8.1) and (8.2), a veteran applying for admission to a home that receives or has received financial contributions from the Royal Canadian Legion shall be assigned, for the purposes of admission to such homes, a priority rating that is higher than the priority rating assigned to non-veterans applying for admission to such homes."
1540
Again, this motion is an attempt to set up a priority rating system. It is my understanding that the operating manual that accompanies this legislation has a priority rating system in terms of emergency, non-emergency and others. For the life of me, I don't understand why the government would not want in some way to incorporate that priority rating system and the suggested PC priority rating system into legislation.
Mr Wessenger: I'll ask that the vote be deferred on this one.
The Chair: Okay, the subsection 18(8) vote is deferred.
We then have two Liberal motions, said the Chair -- we welcome Mrs Sullivan to her chair -- subsections 18(8.1) and 18(8.2).
Mrs Sullivan: The first motion is with respect to taking into account the person's preference and requirements, and the second would ensure that the home could provide the care and services required for the person. As both of those have been incorporated into a government motion at our request, we will not be putting them forward.
The Chair: So subsections 18(8.1) and 18(8.2) are not moved. We will then move to the Conservative motion, subsection 18(8.4); Mr Wilson.
Mr Jim Wilson: I move that section 18 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be amended by adding the following subsection after subsection (8.3):
"Alternative plan of care
"(8.4) A placement coordinator shall suggest an alternative plan of care to an applicant if,
"(a) the placement coordinator determines that the applicant is not eligible for admission to the home; or
"(b) the placement coordinator determines that the applicant is eligible for admission to a home but does not authorize their immediate admission."
My comments here would be similar to those made when a similar amendment was put forward under the Charitable Institutions Act. I believe that as a result of this amendment in the first round, there were some changes to the government's own amendments. Perhaps the parliamentary assistant could elaborate on that.
Mr Wessenger: With respect to the Charitable Institutions Act, I believe we had our own amendment. I don't know whether counsel can remember where the amendment is.
Mr Jim Wilson: While counsel is looking, the last PC amendment dealt with the priority rating system regarding veterans and spouses. One of the great benefits of the opposition putting forward those amendments, particularly that one, is that it ensured that the government dealt with the issue of spouses and veterans. We saw today a significant shift in the government. Perhaps the parliamentary assistant can instruct his counsel to look ahead when they can foresee I'm going to ask where changes were made and are contemplated to be made. It might speed up the process a bit if they could second-guess where I'm going, because they know what I'm going to do.
Mr Wessenger: Mr Wilson, your amendment was incorporated in what we've already passed in subsection (8.7).
Mr Jim Wilson: In that case, I'll withdraw my amendment.
The Chair: So subsection 18(8.4) is withdrawn.
Mr Jim Wilson: The point is, we have to move a lot of these so we can get on the record what happened to them in terms of the government accepting the ideas therein. Maybe it would move a little smoother if the parliamentary assistant were to comment as we went along.
The Chair: Thank you. The next motion then is the Liberal 18(9.1). Ms Sullivan.
Mrs Sullivan: Mr Chairman, this motion relates to preference for veterans in veterans' homes, for which there's an agreement between the government of Ontario and the government of Canada. I will not be putting it forward, as the government acceded to our request in the last section of this bill and will do so in this section and will guarantee that those spaces are provided for veterans.
The Chair: And so --
Mrs Sullivan: So I'm not putting this motion forward.
The Chair: Thank you. I'm going to just call a brief recess and ask the critics to gather together quickly, if I can find my club. We'll stand recessed for four minutes.
The committee recessed at 1546 and resumed at 1555.
The Chair: We will continue with our deliberations, and I would just note that the committee will be meeting at 9:30 tomorrow morning to complete its deliberations.
We are at the Liberal amendment, Ms Sullivan, 18(9.2).
Mrs Sullivan: I move that section 18 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be amended by adding the following subsection:
"Preference for persons discharged from facilities
"In making determinations under this section, placement coordinators shall, subject to subsection (9.1)" -- I think I left out (9.2).
The Chair: It's (9.2) that you're moving?
Mrs Sullivan: Subsection 18(9.2)?
The Chair: Yes. You had not moved 18(9.1), so the next one was 18(9.2), "Preference for persons discharged from facilities."
Did you move veterans?
Mrs Sullivan: The veterans one I just spoke to.
The Chair: Yes, and that was not moved, you said, yesterday.
Mrs Sullivan: I was not moving that one. I just spoke to that.
The Chair: Right. Now I'm asking you about your next one, which is 18(9.2), which deals with preference for persons discharged from facilities.
Mrs Sullivan: Do you have a copy?
The Chair: Yes.
Mr Wessenger: I couldn't find mine either.
The Chair: The Chair always likes to feel useful.
Mrs Sullivan: That is the one that I was reading.
I move that section 18 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be amended by adding the following subsection:
"Preference for persons discharged from facilities
"(9.2) In making determinations under this section, placement coordinators shall, subject to subsection (9.1), ensure that preference is given to persons whose discharge as a resident was authorized under section 19.1.2, section 9.7.2 of the Charitable Institutions Act or section 20.3.2 of the Nursing Homes Act."
Mr Wessenger: We will not be voting for this motion.
The Chair: We'll defer --
Mr Wessenger: We'll defer, yes.
The Chair: Ms Sullivan, the next one is yours as well.
Mrs Sullivan: I don't have one here.
Mr Jim Wilson: There's a government one first.
The Chair: Is it for 18.1? Yellow page.
Mr Jim Wilson: I thought there was a government 18(5).
The Chair: There's first of all a government 18.1.
Mrs O'Neill: He means 18(5).
Mr Jim Wilson: Bracket (5) to (8.6).
The Chair: That was dealt with. I believe our next one then is the government 18.1. I stand to be corrected. That is in the yellow pages, which I know means something different in another context, but before this committee it means these yellow pages.
Mr Wessenger: I move that section 12 of the bill be amended by adding the following section to the Homes for the Aged and Rest Homes Act, after section 18:
"Information to be given
"18.1(1) A placement coordinator who authorizes a person's admission to a home or joint home, as the case may be, shall give to the municipality maintaining and operating the home, to the municipalities maintaining and operating the joint home or to the board of management of the home, as the case may be, the information mentioned in a paragraph of subsection (2), if,
"(a) the placement coordinator has the information mentioned in the paragraph; and
"(b) consent to the disclosure of the information to the municipality, the municipalities or the board of management, as the case may be, is given by:
"(i) the person whose admission is authorized; or
"(ii) the person, if any, who was lawfully authorized to consent to admission to the home or joint home, as the case may be, on behalf of the person whose admission is authorized.
"Same
"(2) The information referred to in subsection (1) is the following:
"1. Information about assessments of the person whose admission is authorized.
"2. Information about the person's medical history.
"3. Information about the person's social and other care requirements.
"4. The name and address of the person, if any, who was lawfully authorized to consent to admission to the home or the joint home, as the case may be, on behalf of the person whose admission is authorized."
Should we not stand this one down?
The Chair: Could we have a brief recess?
Mr Wessenger: Could I stand this down before the brief recess?
The Chair: Okay. We'll stand that down then. Just a brief recess.
The committee recessed at 1601 and resumed at 1602.
The Chair: So we are standing down section 12 of the bill, section 18.1 of the government amendment; correct?
Mr Wessenger: Yes.
Mrs Sullivan: Standing down or deferring the vote?
Mr Wessenger: It's being stood down because again this relates to the substitute decisions provisions, which we need to pass before we can deal with this.
The Chair: That also applies to this bill, so we need to pass it. Mrs O'Neill.
Mrs O'Neill: On another point of clarification, and I'm sorry we've all been going in and out making calls about tomorrow -- Mrs Sullivan, just before we had a break, said that she would withdraw her section on the veterans because it had been read in. Can I presume that all of those things are going to be transferred from the Charitable Homes Act into these other acts? I just want to be very sure of that, particularly that particular one on veterans' prioritization.
The Chair: The motions that we pass have to be read into the record.
Mrs O'Neill: So the veterans' one will be reread into this act. Is that --
Ms Czukar: Not into this one but into the other.
Mrs O'Neill: Into the Nursing Homes Act?
The Chair: Right.
Mrs O'Neill: Okay. I just wanted to be sure.
The Chair: We will be, if you like, duplicating or replicating in each case. Ms Sullivan.
Mrs Sullivan: I would prefer if a vote were taken on this motion. Even if the section, which comes later, with respect to substitute decisions transitions does not pass -- maybe a surprise -- but if it does not pass, this amendment is still an important amendment and should also be included as part of the act. I would prefer that the vote proceed on this. We'll be supporting this.
The Chair: Parliamentary assistant?
Mr Wessenger: Perhaps let legal counsel give some explanation here about it.
Ms Czukar: The reason for standing it down is that there's reference to the person who is lawfully authorized to consent to admission. If the substitute decisions section for some reason didn't pass in this act, then that wouldn't have any meaning. It wouldn't be clear who was lawfully authorized to consent to the admission.
The Chair: I have Ms Sullivan and Mr Wilson.
Mr Jim Wilson: Mr Wilson and then Ms Sullivan.
The Chair: Okay. I just thought -- why don't we just follow up on that and then we'll go to you.
Mrs Sullivan: In fact, this section would still stand and have the full force as a result of common law and as a result of existing other provisions for committee or power of attorney or common law. There are provisions, and the concepts that are included in this section are important to be maintained in the bill whether or not the substitute decisions sections proceed.
The Chair: The parliamentary assistant has a suggestion, and then I'll go to Mr Wilson.
Mr Wessenger: I have a suggestion that would solve a lot of this problem of standing down; that is, that with the unanimous consent of the committee we could move the motion on substitute decisions and pass it. Then we won't have all this problem of standing down. I would ask for unanimous consent.
The Chair: Is that agreeable? Agreed? Ms Sullivan?
Mrs Sullivan: I suppose we might as well. I don't like that section, but I like this one. That's fine.
The Chair: Okay. We will then move to the government motion, if we just get it here.
Mr Wessenger: It's section 18.1, section 32 of the Homes for the Aged and Rest Homes Act.
I move that the bill be amended by adding the following section after section 18:
"18.1 The act is further amended by adding the following section:
"Transition
"32(1) This section applies until the Substitute Decisions Act, 1992 comes into force, and when the Substitute Decisions Act, 1992 comes into force, this section is repealed.
"Identifying person who is lawfully authorized
"(2) For the purposes of this act and the regulations, a person mentioned in a paragraph of subsection (3) is lawfully authorized to make a decision on behalf of another person concerning that person's personal care if,
"(a) the person on whose behalf the decision is to be made is apparently incapable of making the decision, and
"(b) the person mentioned in the paragraph is,
"(i) at least sixteen years old;
"(ii) available;
"(iii) apparently capable of making the decision; and
"(iv) willing to make the decision.
"Same
"(3) For the purpose of subsection (2), the following persons may be lawfully authorized:
"1. The apparently incapable person's committee of the person appointed under the Mental Incompetency Act.
"2. A spouse or partner of the apparently incapable person.
"3. A child of the apparently incapable person.
"4. A parent of the apparently incapable person.
"5. A brother or sister of the apparently incapable person.
"6. Another relative of the apparently incapable person.
"Meaning of `capable' and `incapable'
"(4) For the purpose of this section, a person is capable of making a decision if the person is able to understand the information that is relevant to making the decision and is able to appreciate the reasonably foreseeable consequences of a decision or lack of decision, and a person is incapable of making a decision if the person is not capable of making the decision.
"Meaning of `available'
"(5) For the purpose of this section, a person is available if it is possible, within a time that is reasonable in the circumstances, to communicate with the person and obtain a decision.
"Meaning of `spouse'
"(6) In this section, `spouse' of an apparently incapable person means a person of the opposite sex,
"(a) to whom the apparently incapable person is married; or
"(b) with whom the apparently incapable person is living, or was living immediately before being admitted to the home, in a conjugal relationship outside marriage, if the two persons,
"(i) have cohabited for at least one year,
"(ii) are together the parents of a child, or
"(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act.
"Meaning of `partner'
"(7) Two persons are partners for the purpose of this section if they have lived together for at least one year and have a close personal relationship that is of primary importance in both persons' lives.
"Ranking
"(8) A person mentioned in a paragraph of subsection (3) is not lawfully authorized to make a decision if a person mentioned in an earlier paragraph of subsection (3) is lawfully authorized to make it.
"Same
"(9) If two or more persons mentioned in the same paragraph of subsection (3) would be lawfully authorized to make the decision, they shall select one person from among them, and the person selected is the only one of them who is lawfully authorized to make the decision.
"Decisions on person's behalf
"(10) A person who makes a decision on behalf of an apparently incapable person shall do so in accordance with the following principles:
"1. If the person knows of a wish that the apparently incapable person expressed while capable, the person shall make the decision in accordance with the wish.
"2. If the person does not know of a wish that the apparently incapable person expressed while capable, the person shall make the decision in the apparently incapable person's best interests.
"Best interests
"(11) In deciding what an apparently incapable person's best interests are, the person making the decision shall take into consideration,
"(a) the values and beliefs that the person knows the apparently incapable person held when capable and believes the apparently incapable person would still act on if capable; and
"(b) the apparently incapable person's current wishes, if they can be ascertained."
The Chair: I understand that this is exactly the same wording as was in the previous similar amendment to the Charitable Institutions Act?
Mr Wessenger: Yes, it is.
The Chair: Okay, comments: Ms O'Neill and Mr Wilson.
Mrs O'Neill: I have a couple of questions, Mr Chairman. Will the bill have to be opened again once this transition period is over?
1610
Mr Wessenger: No, it will not have to be opened again; it will automatically be repealed when the Substitute Decisions Act is proclaimed.
Mrs O'Neill: This section of the bill will be repealed.
Mr Wessenger: Yes, automatically.
Mrs O'Neill: Okay. My second question is this: You, as parliamentary assistant, stated earlier today that this was a request of the homes. Can I then take it that this is a political decision to do it this way?
Mr Wessenger: No, it is not. It was felt to be in the best interests of all concerned that there be a substitute decision-maker in the case of incapable persons rather than to leave the situation existing where the provider would be the sole decision-maker with respect to the treatment, and it also is to cover the technical problem of admission of an incapable person to a home.
Mrs O'Neill: I tend to disagree that it's not political, because we certainly haven't got unanimity on this issue here and what the best interests of all concerned are is certainly up for interpretation.
Has it anything to do with liability and the homes not being willing to continue in their position?
Mr Wessenger: I don't think so, no. I would not say that at all. It's really based on the question of trying to ensure that the family has the input with respect to the decision.
Mrs O'Neill: As we've been told this morning, the next of kin is often a non-existent entity. I still feel this is very dangerous, and I am certainly not going to support it in any part of any of these bills.
Mr Jim Wilson: I too have a great many problems with this. I want to ask, who determines capacity and who does the assessment? I think it's important we have at least that clear if this is to be transitional legislation.
Mr Wessenger: I will ask legal counsel to respond to that one.
Ms Czukar: Because the terminology is "apparently incapable," incapable has a definition. It would be, as it is now, up to the party responsible for obtaining a consent or having someone sign a contract to satisfy themselves whether the person has capacity to do either of those things. So it would be that person who would decide, as they do now, whether they're going to accept the person's consent or look for a substitute consent because they don't think the person is capable of giving a valid consent. That's the way it is now.
What this section does is give them some guidelines about what capacity means and who would make the substitute decision if they are not prepared to accept the consent from the individual himself or herself.
Mr Jim Wilson: I can see the problem. In one of the homes in my riding, there are many young people who, I would think, are and have in the past been deemed incapable, and their families either aren't available to make health care decisions or have really abrogated that responsibility to the administrator of the home. What happens then? Will the administrator continue to be the substitute decision-maker in conjunction with the -- what do we call the state body? -- public trustee's office?
Ms Czukar: That's essentially what would happen. It would be the status quo now, which is that if there is no next of kin willing to undertake that decision-making responsibility or who's not available within range to make the decision, then service providers or placement coordinators or whoever have to accept a decision by the person -- do whatever they do now.
Sometimes they just proceed without someone's consent if there's absolutely no one to do it; sometimes they don't. Sometimes what they do is restrict the person's freedom instead and decide not to allow the person to do certain things, because they don't feel they've got a valid consent.
Mr Jim Wilson: I just don't understand it. I agree with Mrs O'Neill. It seems to me it is somewhat of a political decision, given that you've decided to go ahead with some sort of half-baked substitute decision system. It certainly doesn't go as far as the Substitute Decisions Act, and we were told how dangerous it could be if we didn't get that act right, so we spent a long time trying to get it right.
I think you've done this to save face, because you've got one act that's in the can that isn't yet in effect, you've got this one coming on stream, and you want to say that at least it was an attempt to conform to the Substitute Decisions Act. I don't like it. I think you're creating more problems than it's worth.
The Chair: I'll put the motion.
Mrs O'Neill: A recorded vote.
The Chair: A recorded vote. Shall the government motion, section 18.1, carry? All those in favour?
Ayes
Hope, Jamison, O'Connor, Owens, Wessenger, Wiseman.
The Chair: All those opposed?
Nays
Fawcett, O'Neill (Ottawa-Rideau), Sullivan, Wilson (Simcoe West).
The Chair: The motion is carried. Having done that, we will go back -- could I have the attention of Mr Hope? There were several votes that were deferred earlier. I'd like to deal with them, as well as with the ones that were deferred. I'm going to put them now, if that's agreeable.
Ms Sullivan, the first deferred one was the Liberal amendment 18(2.2). Shall that motion now carry? All those in favour? Opposed? The motion is defeated.
The Conservative motion 18(6): Shall the motion carry? Those in favour? Opposed? Defeated.
Liberal amendment 18(7): Shall the motion carry? All those in favour? Opposed? Defeated.
Conservative amendment 18(8): Shall the motion carry? All those in favour? Opposed? Defeated.
Liberal motion 18(9.2): Shall the motion carry? All those in favour? Opposed? Defeated.
That brings us to 18.1. Shall the government motion 18.1 carry? All those in favour? Opposed? Carried.
We are then at government motion 19.1, am I correct? No. I'm not correct. There was a Liberal motion 18.1 I had overlooked. Mrs Sullivan, we have just passed government motion 18.1, but you have a motion dealing with 18.1.
Mrs Sullivan: This motion related to information which is to be provided to the home via the placement coordinator with respect to the social, personal, medical needs, substitute decision-maker, medical history, information and so on. All of that information is required now by the government motion that we just passed, and therefore I won't be putting it forward.
1620
The Chair: It is not moved. We then come to the government motion, section 19.
Mr Wessenger: I move that section 19 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be amended by:
(i) striking out "a placement coordinator or a member" in the second and third lines and substituting "an"; and
(ii) adding the following subsection:
"Placement coordinator's liability
"(2) Subsection (1) does not relieve a placement coordinator of liability for the acts or omissions of its employees or agents."
Again, this is to ensure that placement coordinators are held accountable for negligence.
The Chair: It's similar to the previous amendment. I'll put the motion.
All those in favour of the government motion? Opposed? Carried.
Liberal motion 19.0.1, Ms Sullivan.
Mrs Sullivan: I would just like to clarify with counsel: Has the government motion with respect to the right of appeal of the home or municipality with respect to admission come forward yet?
The Chair: No. That's next, I understand, on 19.1.
Mrs Sullivan: All right. Thank you.
I move that section 12 of the bill be amended by adding the following section to the Homes for the Aged and Rest Homes Act after section 19:
"Notice of determination to municipality, etc.
"19.0.1(1) A placement coordinator who determines that a person's admission to a home or joint home should be authorized shall serve a notice of the determination on the municipality maintaining and operating the home, the municipalities maintaining and operating the joint home, or the board of management of the home.
"Applicable provisions
"(2) Subsections 19.1(2), (3), (4) and (6) apply, with necessary modifications, with respect to a notice of determination under subsection (1).
"Hearing by Appeal Board
"(3) A municipality, the municipalities, or a board of management that is served with the notice of determination is entitled to a hearing by the appeal board if the municipality, the municipalities or the board of management mails or delivers to the placement coordinator and to the appeal board, within thirty days after the notice of determination is served, a notice requiring a hearing.
"Applicable provisions
"(4) Subsections 19.2(1), (2), (3) and (5) apply, with necessary modifications, with respect to a hearing required by a municipality, the municipalities or the board of management under subsection (3).
"Powers of Appeal Board
"(5) After a hearing by the appeal board, the appeal board may,
"(a) affirm the determination made by the placement coordinator;
"(b) rescind the determination made by the placement coordinator and refer the matter back to the placement coordinator for redetermination in accordance with such directions as the appeal board considers proper; or
"(c) rescind the determination made by the placement coordinator, substitute its opinion for the opinion of the placement coordinator and direct the placement coordinator not to authorize the person's admission to the home or joint home."
The Chair: Thank you. Comments?
Mrs Sullivan: This motion is put to ensure that if the home is not able to meet the needs of the resident who has been authorized for admission to the home, the home has a right of appeal and a review of the admission requirements.
Mr Jim Wilson: I think it's an important amendment. I want to make it clear in my own mind that the appeal board referred to is the Health Services Appeal Board. Is that correct, Mrs Sullivan?
Mrs Sullivan: That's the only board that's now contemplated in the bill.
Mr Jim Wilson: You didn't move forward with your long-term care report.
Mrs Sullivan: No. They wouldn't accept it.
The Chair: Parliamentary assistant.
Mr Wessenger: We'll be voting against this amendment.
The Chair: I put the motion, then. Ms Sullivan's motion: All those in favour? Opposed? Defeated.
The next motion is government motion 19.1.
Mr Wessenger: I move that section 19.1 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Notice of determination
"19.1(1) If a placement coordinator determines that an applicant for a determination respecting eligibility for admission to a home is not eligible, the placement coordinator shall ensure that the applicant and the person, if any, who applied for the determination on behalf of the applicant are notified of,
"(a) the determination of ineligibility;
"(b) the reasons for the determination; and
"(c) the applicant's right to apply to the appeal board for a review of determination.
"Application to appeal board
(2) The applicant may apply to the appeal board for a review of the determination of ineligibility made by the placement coordinator."
Mr Jim Wilson: We will be supporting this amendment. I believe it is of benefit to consumers.
Mrs Sullivan: This motion in fact incorporates much of what was in the motion which I just placed and the government refused and I would be supporting it.
The Chair: Shall the government motion carry? All those in favour? Opposed? Carried.
Conservative proposed amendment 19.1?
Mr Jim Wilson: Mr Chairman, I'm going to go ahead and introduce this, because it does contain one important element that's not contained in the government's.
I move that subsection 19.1(1) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Notice of determination
"19.1(1) A placement coordinator shall serve a notice on an applicant if the placement coordinator,
"(a) determines that an applicant is not eligible for admission to a home; or
"(b) determines a priority rating for the applicant but does not authorize the applicant's admission to a home."
And I further move that section 19.1 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be amended by,
(a) striking out "determination of ineligibility" wherever it appears and substituting in each place "determination"; and
"(b) striking out "for admission to a home" in the first line of subsection (5).
I think it's important that in order to make the system accountable, consumers must be notified of their standing once determination is made by a placement coordinator. I refer members to 19.1(1)(b), which talks about a priority rating. We know the accompanying manual does do some priority rating. That's my understanding of it, and I think consumers should be aware. Even if an authorization for admission doesn't occur, at least they should know where they stood.
The Chair: I'll put the motion. Shall Mr Wilson's motion carry? All those in favour? Opposed? The motion is defeated.
Mr Wilson, you have a subsequent amendment?
Mr Jim Wilson: Again, my verbatim memory is not with me. Did the government deal with some aspects of this in its amendments regarding discharge or transfer?
Mr Wessenger: No, we did not, Mr Wilson.
Mr Jim Wilson: I move that section 12 of the bill be amended by adding the following section to the Homes for the Aged and Rest Homes Act, after section 19.1:
"Discharge for transfer
"19.1.1(1) A municipality maintaining and operating a home, the municipalities maintaining and operating a joint home and the board of management of a home may apply, in accordance with the regulations, to the placement coordinator designated for the home or joint home, as the case may be, for authorization to discharge a resident for transfer to an appropriate alternative setting if the care requirements of the resident cannot be met in the home or joint home.
"Determination
"(2) The placement coordinator to whom an application under subsection (1) is made shall determine whether the resident's care requirements can be met in the home or joint home.
"Authorization
"(3) If the placement coordinator determines that the care requirements cannot be met, the placement coordinator shall authorize the applicant to discharge the resident and shall advise the applicant on an appropriate alternative setting for the resident.
"Discharge
"(4) An applicant may discharge a resident of a home or joint home, as the case may be, when so authorized by a placement coordinator.
"Notice of determination
"(5) The placement coordinator shall serve a notice on the applicant if the placement coordinator determines that the resident's care requirements can be met in the home or joint home and determines not to authorize the resident's discharge, and subsections 19.1(2) to (7) apply with necessary modifications."
Again, this deals with the discharge or transfer of a resident currently residing in one home. That home may not be able to meet the needs of the resident. I know that the government, when this was introduced during our debate of the Charitable Institutions Act, said this amendment really isn't necessary, given that the homes can apply back to the placement coordinator for a transfer or a placement in the community, whatever is appropriate. But the opinion of homes themselves is that that's not good enough and they would like to see a mechanism in legislation that ensures them that the placement coordinator isn't just going to put someone into their home and not be required to respond to the ongoing needs of that resident.
1630
The Chair: Comments?
Mr Wessenger: We'll not be voting for this.
The Chair: Shall Mr Wilson's motion carry? All those in favour? Opposed? Defeated.
Now, I should have, I think, and I will now deal with -- there's a Liberal amendment, but given that we have dealt with the Conservative amendment 19.1.1, which has just been defeated, I would ask Ms Sullivan to just refer to her amendment 19.1.1 and what her preference is there.
Mrs Sullivan: My amendment deals with a completely different area than that which the third party's amendment proposed.
The Chair: Then before dealing with that, we will go to your amendment 19.1(1), (2.1), (3), (4), (5).
Mr Jim Wilson: And (7).
The Chair: And (7). If you would be good enough.
Mrs Sullivan: I move that subsection 19.1(1) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Notice of determination
"(1) A placement coordinator who makes a determination whether an applicant is eligible for admission to a home shall serve on the applicant a notice of determination."
And I further move that section 19.1 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be amended by adding the following subsection:
"Contents of notice
"(2.1) A notice of determination of eligibility under subsection (1) shall inform the applicant of,
"(a) the priority level for the person's admission;
"(b) the requirement set out in subsection (5) for entitlement to a hearing by the appeal board; and
"(c) the requirement set out in subsection (6) for obtaining an extension of the time for giving a notice requiring a hearing."
And I further move that subsections 19.1(3), (4), (5) and (7) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be amended by striking out "determination of ineligibility" everywhere it appears and substituting "determination."
We believe that the people who have applied to be assessed for eligibility for admission to a home have the right to know both whether they are determined to be eligible and whether they're determined to be ineligible for admission, and that the contents of the notice to them should include substantial information about the right to appeal and the time lines with respect to that appeal.
Mr Wessenger: We will not be voting for the motion.
The Chair: I then move Ms Sullivan's motion. All those in favour? All those opposed? The motion is defeated.
Ms Sullivan, we'll then deal with your amendment 19.1.2 and 19.1.3.
Mr Wessenger: What about 19 --
The Chair: We will come to that. We'll deal with 19.1.1 first.
Mrs Sullivan: Section 12 of the bill?
The Chair: Yes.
Mrs Sullivan: Okay. I move that section 12 of the bill be amended by adding the following section to the Homes for the Aged and Rest Homes Act after section 19.1:
"Notice of determination to person seeking admission
"19.1.1(1) A placement coordinator who determines that a person's admission to a home should not be authorized shall serve a notice of determination on the person.
"Applicable provisions
"(2) Subsections 19.1(2), (3), (4) and (6) apply, with necessary modifications, with respect to a notice of determination under subsection (1).
"Hearing by appeal board
"(3) A person who is served with a notice of determination is entitled to a hearing by the appeal board if the person mails or delivers to the placement coordinator and to the appeal board, within 30 days after the notice of determination is served, a notice requiring a hearing.
"Applicable provisions
"(4) Subsections 19.2(1), (2), (3) and (5) apply, with necessary modifications, with respect to a hearing requested by a person under subsection (3).
"Powers of appeal board
"(5) After a hearing by the appeal board, the appeal board may,
"(a) affirm the determination made by a placement coordinator;
"(b) rescind the determination made by the placement coordinator and refer the matter back to the placement coordinator for redetermination in accordance with such directions as the appeal board considers proper; or
"(c) rescind the determination made by the placement coordinator, substitute its opinion for the opinion of the placement coordinator and direct the placement coordinator to authorize the person's admission to the home."
To the broad TV audience that is watching this, it sounds like a lot of gobbledegook. In fact what we are saying is that a person who has applied for entry to a home for the aged should have the right to know whether or not he has been found to be eligible to enter that home, which is included in the bill, but also should have the right to know whether he has been authorized for admission.
If he has been found eligible but not authorized for admission, in other words, if the placement coordinator says, "Yes, you should be in a home and you are eligible to be in that home," but then says, "No, you can't be in that home," the person should have the right of appeal, and that's what this amendment does.
Mr Jim Wilson: I want to just express my support for the amendment. I think it's a commonsense approach to this process and I think people deserve to know where they stand, whether or not they're authorized for admission. I'll leave it at that.
Mr Wessenger: We will not be voting for this amendment.
The Chair: Shall Ms Sullivan's motion carry? All those in favour? Opposed? Defeated.
Ms Sullivan, your last one in this grouping, 19.1.2 and 19.1.3.
Mrs Sullivan: I think this is an important motion.
I move that section 12 of the bill be amended by adding the following sections to the Homes for the Aged and Rest Homes Act, after section 19.1.1:
"Discharge for transfer
"19.1.2(1) A municipality maintaining and operating a home, the municipalities maintaining and operating a joint home or a board of management of a home may apply, in accordance with the regulations, to the placement coordinator designated for the home for authorization to discharge a resident for transfer to an appropriate alternative setting if the care requirements of the resident cannot be met in the home.
"Notice to resident
"(2) The applicant shall give notice of the application to the resident.
"Determination
"(3) The placement coordinator to whom an application under subsection (1) is made shall determine whether the resident's care requirements can be met in the home.
"Authorization
"(4) If the placement coordinator determines that the care requirements cannot be met, the placement coordinator shall authorize the applicant to discharge the resident and shall advise the resident on an appropriate alternative setting for the resident.
"Discharge
"(5) An applicant may discharge a resident of a home when so authorized by a placement coordinator if an appropriate alternative setting for the resident is available and transfer to that setting is consented to by the resident or by a person authorized to consent on behalf of the resident.
"Notice of determination
"(6) The placement coordinator shall serve a notice on the applicant if the placement coordinator determines that the resident's care requirements can be met in the home and determines not to authorize the resident's discharge.
"Applicable provisions
"(7) Subsections 19.1(2), (3), (4) and (6) apply, with necessary modifications, with respect to a notice of determination under subsection (6).
"Hearing by appeal board (discharge)
"19.1.3(1) A municipality or board of management that is served with a notice of determination under subsection 19.1.2(6) is entitled to a hearing by the appeal board if the municipality or board of management mails or delivers to the placement coordinator and to the appeal board, within thirty days after the notice of determination is served, a notice requiring a hearing.
"Applicable provisions
(2) Subsections 19.2(1), (2), (3) and (5) apply, with necessary modifications, with respect to a hearing required by a municipality or board of management under subsection (1).
"Powers of appeal board
"(3) After a hearing by the appeal board, the appeal board may,
"(a) affirm the determination made by the placement coordinator;
"(b) rescind the determination made by the placement coordinator and refer the matter back to the placement coordinator for redetermination in accordance with such directions as the appeal board considers proper; or
"(c) rescind the determination made by the placement coordinator, substitute its opinion for the opinion of the placement coordinator and direct the placement coordinator to authorize the resident's discharge."
1640
The Chair: Comments? Mr Wilson.
Mr Jim Wilson: Thank you, Chair. Just to indicate that we'll be supporting this amendment. It's similar in part to the PC amendment I put forward just a few minutes ago. However, it goes even a little further in terms of allowing a facility access to an appeal process if the placement coordinator determines that indeed the resident's care needs can be met in the home. The home may dispute that and can of course go to appeal, and for that reason, and the other stated previously, I support this.
Mr Wessenger: We will not be voting for this amendment.
The Chair: I'll put Ms Sullivan's motion then. Shall the motion carry? All those in favour? Opposed? It's defeated.
Mr Wilson, yours I think is even --
Mr Jim Wilson: Just before I might read this into the record, Mr Chairman, to make it clear, has the government made similar amendments regarding the 21-day provision, whereas my amendment talks about 90 days?
Mr Wessenger: Yes, that is correct.
Mr Jim Wilson: I won't be introducing this amendment.
The Chair: Okay. So your proposed amendment 19.2(1.1) is not moved?
Mr Jim Wilson: That's so.
The Chair: The next then would be the government amendment. No? Yes? I believe so.
Mr Wessenger: I move that subsections 19.2(1) and (2) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Hearing
"19.2(1)" --
The Chair: Sorry, can I just interrupt? You're reading from a white copy. Is it not a yellow one now?
Mr Wessenger: Have I got the wrong one?
Ms Czukar: Most people here would have yellow one.
The Chair: Okay, but his is white.
Ms Czukar: If you have a yellow one with a "2-JG" in the right upper corner, you've got the right one.
The Chair: Okay. "2-JG." Sounds like junior lieutenant or something. Sorry, just the indulgence of the Chair while I try to find --
Mr Wessenger: You can have this copy.
The Chair: Wait, here we are. Yes, we're fine. Thank you.
Mr Wessenger: I might be reminded where I left off in my reading.
The Chair: Why don't you start again. The Chair has thrown you off.
Mr Wessenger: I move that subsections 19.2(1) and (2) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Hearing
"19.2(1) When the appeal board receives an application for a review of a determination of ineligibility, it shall promptly appoint a time and place for a hearing.
"Same
"(2) The hearing shall begin within twenty-one days after the day the appeal board receives the application for the hearing, unless the parties agree to a postponement.
"Notice to parties
"(2.1) The appeal board shall notify each of the parties of the time and place of the hearing at least seven days before the hearing begins.
"Parties
"(2.2) The parties to the proceeding before the appeal board are the applicant who was determined to be ineligible for admission, the placement coordinator who made the determination and such other parties as the appeal board specifies.
"Notice to the minister
"(2.3) When a placement coordinator is notified by the appeal board of a hearing, the placement coordinator shall promptly give the minister written notice of the hearing together with written reasons for the determination of ineligibility made by the placement coordinator.
"Minister entitled to be heard
"(2.4) The minister is entitled to be heard by counsel or otherwise in a proceeding before the appeal board under this section."
This again is the same as was in the previous act, the Charitable Institutions Act, and sets out --
The Chair: Thank you. Any comments? If not, shall the government motion carry? All in favour? Carried.
Then the Conservative motion, 19.2(4).
Mr Jim Wilson: I think the government has a motion before mine.
Mrs Sullivan: So have the Liberals.
The Chair: Subsection 19.2(3).
Mr Wessenger: I move that subsection 19.2(3) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Quorum of appeal board
"(3) Three members of the appeal board constitute a quorum and are sufficient for the exercise of the jurisdiction and powers of the appeal board under this act."
Again, I might add, this complies with what was passed in the previous act.
The Chair: Shall the government motion carry? All those in favour? Opposed? Carried.
The government also has an amendment to 19.2(4).
Mr Wessenger: I move that subsection 19.2(4) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out.
The Chair: All those in favour?
Mr Jim Wilson: I just want to comment that we're supporting this and it's identical certainly to the PC amendment and I think to the Liberal amendment.
The Chair: All those in favour? Opposed? Carried.
I then have a PC amendment and a Liberal amendment.
Mr Jim Wilson: The PC amendment won't be introduced.
The Chair: The Liberal?
Mrs Sullivan: As my motion is identical to that of the government, I won't be putting it forward.
The Chair: Okay. Those are both not moved. We then come to a government amendment.
Mr Wessenger: This is 19.2(5.1) to (5.4)?
The Chair: Yes.
Mr Wessenger: I move that section 19.2 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be amended by adding the following subsections, after subsection (5):
"Evidence of disabled person
"(5.1) If a party to a proceeding before the appeal board under this act wishes to give evidence in the proceeding or wishes to call another person as a witness to give evidence in the proceeding, but the party or other person is unable to attend the hearing by reason of age, infirmity or physical disability, the appeal board members holding the hearing may, at the request of the party, attend upon the party or the other person, as the case may be, and take his or her evidence.
"Medical report proves inability
"(5.2) A medical report signed by a legally qualified medical practitioner stating that the practitioner believes that the person is unable to attend the hearing by reason of age, infirmity or physical disability is proof, in the absence of evidence to the contrary, of the inability of the person to attend the hearing.
"Opportunity for all parties
"(5.3) No appeal board member shall take evidence from a party or other person under subsection (5.1) unless reasonable notice of the time and place for taking the evidence is given to all parties to the proceeding and each party attending is given an opportunity to examine or cross-examine the party or other person, as the case may be.
"Recording of evidence
"(5.4) The oral evidence taken before the appeal board at a hearing and the oral evidence taken from a party or other person under subsection (5.1) shall be recorded and, if required, copies of a transcript of the evidence shall be furnished on the same terms as in the Ontario Court (General Division)."
The Chair: Any comments on this motion?
Mrs Sullivan: I just want to confirm something with the parliamentary assistant; I know we dealt with a similar motion in the charitable homes bill. Under the international protocols, is "infirmity" the appropriate word or is "impairment" the appropriate word that should be used here?
Mr Wessenger: I can only ask legislative counsel.
Ms Czukar: "Impairment" could be used instead of "infirmity," but this wording is taken from the provisions in the Nursing Homes Act that currently allow this kind of evidence to be given in this way.
1650
Mrs Sullivan: The only reason I put it on the table -- and I didn't catch it in the previous bill -- is that there are World Health Organization standards and definitions with respect to whether one is infirm, impaired, incapable etc. If we're using the wrong word, there could be difficulties with interpretation, because the CPSO standards are those of the World Health Organization.
Ms Czukar: I don't think that legally there would be a problem with it. It would be interpreted according to the section, and the medical report stating that the practitioner believes the person is unable to attend the hearing by whatever reason would be proof that the person can't attend. It wouldn't depend on a technical interpretation of the meaning of those terms.
Mr Jim Wilson: We will be supporting this amendment.
The Chair: I'll put the government motion. All those in favour? Opposed? Carried.
The next one is the government motion to subsection 19.2(6).
Mr Wessenger: I move that subsection 19.2(6) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Health Insurance Act
"(6) Subsections 23(1), (2), (4), (5) and (6) of the Health Insurance Act apply to the proceedings and decisions of the appeal board under this act."
The Chair: Any comments? I'll put the motion. Shall the government motion carry? All those in favour? Opposed? Carried.
Ms Sullivan, you have an amendment to the same subsection?
Mrs Sullivan: I 'm not going to put it.
The Chair: Mr Wilson, you're next.
Mr Jim Wilson: Given that the government has thwarted all attempts to improve the appeal mechanisms of this legislation, I won't be moving the amendment to subsection 19.2(7), which is essentially a housekeeping motion regarding appeal.
The Chair: Either one or just the first one? I have two amendments of yours.
Mr Jim Wilson: Neither will be moved.
The Chair: All right. Just for the record, neither is moved.
We then go to a government amendment, subsection 19.2(7.1).
Mr Wessenger: I move that section 19.2 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be amended by adding the following subsection after subsection (7):
"Decision and reasons
"(7.1) The appeal board shall render its decision within one day after the end of the hearing and shall provide written reasons to the parties within seven days after rendering the decision."
The Chair: Any comment on the government amendment? No. Shall the government motion carry? All those in favour? Opposed? Carried.
Then the Conservative motion, Mr Wilson, section 19.2.1.
Mr Jim Wilson: Again, this refers to a previous attempt to improve the appeal mechanisms under this act, and as they weren't accepted by the government, I won't be moving this amendment.
The Chair: Thank you, Mr Wilson; not moved.
There is a further amendment. Mr Wilson, yours is next.
Mr Jim Wilson: For the same reasons, this amendment won't be moved.
The Chair: Same reason, not moved.
Then a government motion to section 19.5.
Mr Wessenger: I move that section 19.5 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be amended by striking out "and" at the end of clause (c) and by adding the following clause after clause (c):
"(c.1) an opportunity to participate fully in the development and revision of the resident's plan of care is provided to the resident, to the person who is lawfully authorized to make a decision on behalf of the resident concerning the resident's personal care and to such other person as they may direct; and"
Mr Jim Wilson: I'll just indicate that we will be supporting this amendment. I think it ensures consumer involvement or involvement of the resident's substitute decision-maker.
Mrs Sullivan: We still feel there is a gap, in that the associated consent with respect to implementation isn't attached to this particular section.
The Chair: Shall the government motion carry? All in favour? Opposed? Carried.
We then have three Liberal amendments to the same section 19.5(d).
Mrs Sullivan: I move that clause 19.5(d) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out.
Mr Chairman, once again I put that the plan of care, although it may be developed by a multidisciplinary team associated with the home, is not necessarily solely provided by the home, and this subsection of this bill would require that the entire plan of care be provided to the resident in the home by the home. It's impractical and impossible.
Mr Jim Wilson: Mr Chairman, I think the Liberal motion is redundant, given that we've already passed a government motion that talks about ensuring that the consumer is involved in the development of the plan of care. I would think that if you're involved in the development, you're very much aware of it. I really don't like to see clauses added to legislation that may not be necessary.
Mrs Sullivan: The critic for the third party must be talking about a different amendment. This amendment would require the home to ensure that the plan of care is provided whether or not the home is responsible for certain aspects of the delivery of the plan of care. I suggest to you, by example, that if part of the plan of care is rehabilitation in a hospital, the nursing home or the home for the aged cannot possibly be held accountable for the portion of the plan of care that it will not be providing.
Mr Jim Wilson: Mr Chairman, when this was dealt with under the Charitable Institutions Act, I was satisfied at the time, but I do stand to be corrected, that the government had incorporated the principle in Mrs Sullivan's amendments -- because there are really three to this section -- in its own amendments. I would like to hear comment from the parliamentary assistant on that.
Mr Wessenger: Mr Wilson, with respect, I think you're looking at the next amendment, which is 19.5(2) and (3), in which it was covered.
The Chair: It is late in the day.
Mr Jim Wilson: I'm having a great debate with myself.
The Chair: Those are the most fascinating.
Mr Jim Wilson: I was doing well up to this point.
The Chair: I think we're all debating with ourselves. Shall Ms Sullivan's motion carry? All in favour? All opposed? Defeated. Ms Sullivan, your next amendment.
Mrs Sullivan: Mr Chairman, I have, as you know from your pile, two similar amendments. The first I will not present, but I will present the second one.
The Chair: Okay. The first one then will not be moved, and the next one will be. Please go ahead.
Mrs Sullivan: I move that clause 19.5(d) of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"(d) the care outlined in the plan of care, for which the municipality, the municipalities or the board of management is responsible for providing under the service agreement or a contract with the resident, and for which the municipality, the municipalities or the board of management has been compensated, is provided to the resident."
This becomes much more specific in outlining the standards which will be and should be expected of the home in terms of providing a guarantee or ensuring services which are provided to the resident.
1700
Mrs O'Neill: I ask this specifically of the parliamentary assistant: If this amendment does not pass, the fact of the matter is that the costs of the plan of care, which you sometimes describe as open-ended, will go to the local taxpayer in each community in this province. Is that the bottom line if this amendment doesn't go?
Mr Wessenger: No, the plan of care is established by the facility.
Mrs Sullivan: I'd like to point out that if this amendment doesn't pass, what will in fact occur is that the plans of care, which, as the parliamentary assistant indicates, are drafted by the facility, will be incomplete. They will not refer to any portions of treatment or course of treatment or rehabilitation which ought and should be an integral part of the plan of care but which is provided either offsite or is not covered in the level-of-care funding from the ministry to the home.
There is a singular problem with this section of the bill. The home cannot guarantee parts of the plan of care which it is not responsible for delivering, is not paid for delivering, does not have the qualifications to deliver, or that should be delivered offsite. Therefore, those elements, which ought to be included in a plan of care, will be left out of the plan of care and the resident will have what is an incomplete plan of care, for which approval has to be granted. No matter whether the resident is participating in the development or not, the home is left in the position of having to say to the resident on each occasion, if something is left out, "Well, sorry, that cannot be part of the plan of care, because we cannot be responsible for ensuring that that is provided."
I really believe that the government should revisit this section, not only in this section of the bill but in the previous section and in the subsequent section.
Mr Jim Wilson: Now that I'm with you on this section, I think Mrs Sullivan raises a very serious concern, which I would say is better explained at this time than it was when we were dealing with the Charitable Institutions Act. I wouldn't mind hearing the parliamentary assistant's response.
Mr Wessenger: I think it's all very speculative to determine what level any plan of care is going to provide. It's certainly a fact that plans of care will be delivered relevant to the financial capabilities of the institution -- I think that's fair to say -- and will be tailored in line with the financial ability to provide the plans of care.
Mrs O'Neill: In this discussion it's very important that we bring forward that these facilities, the homes for the aged, are the ones that are going to be red-circled. If you remember, the term used by the municipalities that presented to us was: Where is the government going? "The lowest common denominator." That's the difficulty with this particular bill in this particular direction. Mrs Sullivan brings it -- certainly not speculatively. We've had testimony on this issue.
The Chair: I'll put Ms Sullivan's motion. All those in favour? All those opposed? It is defeated.
We then move, Ms Sullivan, to your next amendment, which is 19.5(2) and (3).
Mrs Sullivan: Mr Chairman, I'm looking for advice from counsel as to whether this has already been included in the government motion or if it is yet to come.
The Chair: Which counsel were you looking at?
Mrs Sullivan: Any one.
Mr Wessenger: I'll ask counsel to respond, but I do believe it relates to plan of care.
Ms Czukar: It relates to the government motion that added paragraph (c.1) to the provision regarding plan of care to ensure resident participation.
Mrs Sullivan: Thank you. As it has been dealt with, I will not put this motion.
Mr Jim Wilson: Mr Chairman, just a comment on the motion that isn't being moved: This is the one that I felt was redundant. So hurry up, you guys; you're way behind.
The Chair: You're just ahead of us.
Ms Sullivan, 19.5.1: another one that may or may not be --
Mrs Sullivan: I move that section 12 of the bill be amended by adding the following section to the Homes for the Aged and Rest Homes Act after section 19.5:
"Immunity for employees
"19.5.1. No proceeding for damages shall be commenced against an employee of a home or joint home for any act done in good faith in the performance or intended performance of the person's duty or for any alleged neglect or default in the performance in good faith of the person's duty."
I'd like a recorded vote.
Mr Jim Wilson: I'll be supporting, as I did when we were dealing with the Charitable Institutions Act. For the record, I can't believe the government would not be supporting immunity for employees.
The Chair: We'll put the motion; recorded vote. Shall Mrs Sullivan's motion carry? All those in favour?
Ayes
Fawcett, O'Neill (Ottawa-Rideau), Sullivan, Wilson (Simcoe West).
Nays
Hope, O'Connor, Owens, Wessenger, Wiseman.
The Chair: The motion is defeated.
Government motion 19.6.
Mr Wessenger: I move that section 19.6 of the Homes for the Aged and Rest Homes Act, as set out in section 12 of the bill, be struck out and the following substituted:
"Quality management
"19.6. A municipality maintaining and operating a home, the municipalities maintaining and operating a joint home and the board of management of a home shall ensure that a quality management system is developed and implemented for monitoring, evaluating and improving the quality of the accommodation, care, services, programs and goods provided to the residents of the home or joint home, as the case may be."
The Chair: Any comments?
Mr Jim Wilson: Again, as I commented during our discussion of the previous section of the bill dealing with the Charitable Institutions Act, I will be supporting this amendment, with the reservation given that I think it attempts to delineate what element should become part of a quality management plan when indeed experts in the field tell us that the latter part of the motion is really not necessary and in fact may be an impediment to a good-quality management program.
The Chair: Shall the government motion carry? All in favour? Opposed? Carried.
Mrs Sullivan, what do you wish to do with your motion?
Mrs Sullivan: I won't be putting my motion forward.
The Chair: The last two we'll deal with here. Under section 12, Mr Wilson.
Mr Jim Wilson: Given that the government's amendment we just passed deals with quality management, I won't be putting forward my amendment either.
The Chair: Either one?
Mr Jim Wilson: Either one.
The Chair: Not moved, 19.6(1), and not moved, 19.6(2).
Shall section 12 of the bill, as amended, carry? Carried.
Because there are no amendments to section 13, shall section 13 of the bill carry? Carried.
We will begin tomorrow morning with section 14. I want to thank the members for a long day and for cooperation. We will meet here tomorrow morning at 9:30 and complete our proceedings. The committee is adjourned.
The committee adjourned at 1709.