PERSONS UNITED FOR SELF-HELP, NORTHWEST
ONTARIO PSYCHOLOGICAL ASSOCIATION
CONSUMERS' ASSOCIATION OF CANADA (ONTARIO)
PARKDALE COMMUNITY HEALTH CENTRE
ONTARIO ASSOCIATION OF NON-PROFIT HOMES AND SERVICES FOR SENIORS
CAMPAIGN LIFE COALITION ONTARIO
OFFICE OF CHILD AND FAMILY SERVICE ADVOCACY
CONTENTS
Thursday 12 March 1992
Advocacy Act, 1991, Bill 74, and companion legislation / Loi de 1991 sur l'intervention, projet de loi 74, et les projets de loi qui l'accompagnent
Persons United for Self-Help, Northwest
Bob Magnusson, board member
Ontario Psychological Association
Dr Warren Nielson, president-elect
Dr Ruth Berman, executive director
Ontario Medical Association
Dr Ian Warrack, director
Ted Boadway, director, health policy
Barb LeBlanc, manager, health policy
Consumers' Association of Canada (Ontario)
Lucienne Bushnell, vice-president, issues and policy
Anne Louise Heron, chair, health committee
Karen Crozier, member, health committee
Joanne Marshall, member, health committee
Parkdale Community Health Centre
Frumie Diamond, community health educator
Ontario Association of Non-Profit Homes and Services for Seniors
Paul O'Krafka, president
Michael Klejman, executive director
Campaign Life Coalition Ontario
Mary Ellen Douglas, president
Rhonda Wood, coordinator
Sabina McLuhan, policy researcher
Ontario Dental Association
David Somer, president
Linda Samek, director of professional affairs
Office of Child and Family Service Advocacy
Judy Finlay, manager, advocacy office
Kaca Henley, child advocate
David Kelley, child advocate
Planned Parenthood of Toronto
Alex Daschko, board member
Marion Maye, coordinator
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président(e): Cooper, Mike (Kitchener-Wilmot ND)
Vice-Chair / Vice-Président(e): Morrow, Mark (Wentworth East/-Est ND)
Carter, Jenny (Peterborough ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
Fletcher, Derek (Guelph ND)
Malkowski, Gary (York East/-Est ND)
Poirier, Jean (Prescott and Russell/Prescott et Russell L)
Sorbara, Gregory S. (York Centre/Centre L)
Sterling, Norman W. (Carleton PC)
Wessenger, Paul (Simcoe Centre/Centre ND)
Wilson, Jim (Simcoe West/-Ouest PC)
Winninger, David (London South/-Sud ND)
Substitution(s) / Membre(s) remplaçant(s):
Akande, Zanana, L. (St Andrew-St Patrick ND) for Mr Morrow
Carr, Gary (Oakville South/-Sud PC) for Mr Sterling
Lessard, Wayne (Windsor-Walkerville ND) for Mr Fletcher
Mancini, Remo (Essex South/-Sud L) for Mr Sorbara
Sullivan, Barbara (Halton Centre/Centre L) for Mr Chiarelli
Ward, Brad (Brantford ND) for Mr Fletcher
Also taking part:
Spinks, Trudy, Ministry of Citizenship
Clerk / Greffier: Freedman, Lisa
Staff / Personnel: Swift, Susan, Research Officer, Legislative Research Service
The committee met at 0952 in committee room 1.
ADVOCACY ACT, 1991, AND COMPANION LEGISLATION / LOI DE 1991 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Resuming consideration of Bill 7, An Act to amend the Powers of Attorney Act; Bill 8, An Act respecting Natural Death; Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / Projet de loi 74, Loi concernant la prestation de services d'intervenants en faveur des personnes vulnérables; Bill 108, An Act to provide for the making of Decisions on behalf of Adults concerning the Management of their Property and concerning their Personal Care / Projet de loi 108, Loi prévoyant la prise de décisions au nom d'adultes en ce qui concerne la gestion de leurs biens et le soin de leur personne; Bill 109, An Act respecting Consent to Treatment / Projet de loi 109, Loi concernant le consentement au traitement; and Bill 110, An Act to amend certain Statutes of Ontario consequent upon the enactment of the Consent to Treatment Act, 1991 and the Substitute Decisions Act, 1991 / Projet de loi 110, Loi modifiant certaines lois de l'Ontario par suite de l'adoption de la Loi de 1991 sur le consentement au traitement et de la Loi de 1991 sur la prise de décisions au nom d'autrui.
The Chair: I would like to make a small announcement before we start. To all the members: If anybody knows that anybody who is disabled or handicapped is coming in, all the disabled parking spots are at the back of the building now in the east court. Anybody giving directions from the MPPs or the ministry offices, please advise the people that the parking is there now and not in the front.
PERSONS UNITED FOR SELF-HELP, NORTHWEST
The Chair: I would like to call forward our first presenters, from the Persons United for Self-Help, Northwest. Good morning.
Mr Magnusson: Good morning.
The Chair: Just a reminder, you will be allowed a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes to allow time for questions and comments from each caucus. As soon as you are comfortable, please identify yourself for the record and then proceed.
Mr Magnusson: Ladies and gentlemen, my name is Bob Magnusson. I represent the local grass-roots, cross-disability, self-help organization that is driven by consumers with disabilities. I come from the western frontier of Ontario, the last town in Ontario on the western border.
Mr Poirier: I am at the last town in the east.
Mr Magnusson: A long way between the two, yes. What has brought me here today is the Advocacy Act, Bill 74. Going through and over these bills, Bills 74, 108, 109 and 110, we have asked to have our input into this committee. We have concerns regarding the proposed bills.
One of our concerns is that the Advocacy Act, as it now reads, provides no guarantee that the advocacy services will be available in the same quality or degree to all people who fit the definition of vulnerable.
Another of our concerns is with dealing with the mechanism for provision of service with minimum qualifications of service and education standards for advocates, procedures and standards governing the provision of advocacy service. This education, while much needed, can soon be passed on to the education system. As we all know, I think, our education system is taxed and very cut back in the last while.
I represent here Persons United for Self-help, northwestern Ontario. In my local town I represent the Physically Challenged Action Network, which is locally based, consumer-driven, people with disabilities. The purpose of PCAN, as our acronym is, is to facilitate collaboration among stakeholders in order to positively affect the full integration of people with disabilities in our Kenora area.
Picture individuals with disabilities having the skills and support to be responsible, to independently incorporate all aspects of community life into reality for each individual. The ability to advocate is identified as a crucial factor in achieving this vision.
Advocacy: Everyone in our society has the right to live life to the fullest, but many people with disabilities face barriers that prevent them from doing so. Perhaps they are denied access to facilities, transportation or programs. Perhaps the problem is attitudinal barriers. They can be as formidable as physical restraints. In some cases, the barriers may be self-imposed. Whatever the reason for the barrier, advocacy, the process of speaking up, can help the process to assist people with disabilities achieve meaningful change to conditions that adversely affect them.
A person with a disability, for a definition, is a person who is restricted in the type or amount of activity he or she can enjoy because of an intellectual, physical or emotional limitation. To empower people with disabilities is to give them the authority to effectively change the policies and the opportunities and attitudes that affect their quality of life.
We have been advocates, whether it is for crying infants or a lawyer pending a client's case. Advocacy is part of a person's effort to achieve a more desirable state, either personally or on behalf of another. Obviously, not all advocacy attempts are equally successful.
I have handed out the organizational structure of the self-help consumer movement of disabled people. This is a structure we have in the northwestern region. As it shows, it is only one of the six regions of Ontario. In the region we have it broken down. My concern with being here and putting this forward to you is that there is an issue advocacy service that has been in effect and working, I could say, quite well since its inception in 1981. This is how it is set out. I would like to bring to the notice of this committee how this would fit in with individual advocacy as the Advocacy Act now is worded.
As this will show you, this goes from the grass-roots level of people in local towns, communities, coming to groups and associations like the Physically Challenged Action Network in each district. Each district has its own names for its organizations and groups, but we call ours PCAN.
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If you look at a flow chart, most people will go from the top down, will go from the provincial down to the regional, down to the local level. This is different in our concerns. Our concerns come from the bottom up to the provincial level and also go on past the provincial level to the federal level and also to the international level with Disabled Peoples' International.
In closing my remarks, the advocacy service should be well-established before an attempt to develop the legislation about decision-making. Only with the necessary support in place and working to the benefit of people with disabilities can we begin to know whether the perceived need for guardianship is in fact real.
Mr Poirier: Bob, you mentioned at the beginning that you feel there are no guarantees that the advocacy services will be available in the same quality or quantity as you have explained you have right now, which seems to be something very interesting. Could you elaborate, expand a bit on that? Also, are you able to point to specific areas of what is proposed right now that you feel could cause harm to the quality and quantity of service as you offer it right now?
Mr Magnusson: The quality of service I see through the education proposed in the legislation is a very good idea. I definitely agree with having well-educated people to stand up and voice opinions. I am not sure exactly how the quality of service will affect people in the northern regions in smaller communities and smaller towns. That is why I brought this up with the committee. Services accessible to everyone are hard to find, places in smaller towns and communities that are accessible. Buildings that are wheelchair-friendly often become wheelchair-hostile as soon as you walk through the door. This is one of my bigger concerns, that there is something past the Thunder Bay region of Ontario. People think that there is an expanse of almost 400 miles between Thunder Bay and where I live, and it still goes on to the border. Our region covers from White River to the Manitoba border, north and south.
Mr Poirier: Are your services on a voluntary basis, everybody?
Mr Magnusson: Everyone is on a voluntary basis.
Mr Poirier: No paid staff?
Mr Magnusson: No. Well, we do have a community coordinator in a regional resource centre. We now have a part-time paid staff. Locally is all voluntary.
Mr Poirier: Is there any type of training for your volunteers right now?
Mr Magnusson: Experience.
Mr Poirier: Okay. No doubt that is the best training of all.
Mr Magnusson: No, there is no training that I have been able to find, now speaking as a student of Confederation College at Lake of the Woods campus, to go into disability issues other than the third year of special ed student teacher.
Mr Poirier: How do you feel? Do you think that there is going to be a parallel group of advocates? How do you react or what do you understand from the legislation, that there will be a different group of government advocates that will parallel --
Mr Magnusson: That is what I see and that is my concern, that issue advocacy is in place and has been working for 10-odd years.
Mr Poirier: Do you feel that those proposed may be a competition or a duplication of service?
Mr Magnusson: I do not see how any advocacy could be of competition. But yes, I see that there could be worked into our plan some kind of formal structure or commission, something on that idea. I am not sure. I do not think we have the time today to go into how it could affect.
Mr Poirier: How much time do I have?
The Chair: As much as you like, just about.
Mr Poirier: Fair enough, thank you. If some formal training were available for government-appointed advocates, would you want you and your volunteers to be able to benefit from such formal training? Do you feel that could be helpful or what?
Mr Magnusson: I think we could almost be the trainers.
Mr Poirier: Okay. I like this kind of demonstration of confidence. We should all listen to this gentleman more carefully. I think the point you make is very important. Are there other aspects -- how about Bill 109? You have talked almost exclusively about Bill 74, the Advocacy Act. Are there any other points from other bills you feel your group has a problem with?
Mr Magnusson: Yes. I have dealt mostly with Bill 74 because of the fact that I feel, as in my last statement, the advocacy service should be established well in advance of any kind of guardianship act or legislation, as I said, to perceive the need for a guardianship act and if it is really needed.
Mr Poirier: As for these guardianship acts and whatever, consent to treatment, are there specific points in there that can cause you and your group some problems?
Mr Magnusson: Yes. I think there are actually lots, but I cannot comment --
Mr Poirier: Right now. You are more than welcome. If you and your groups get together and look at it in more detail and you want to give us some feedback as to what you like or do not like, do not hesitate to let us know, because I think it is extremely important. I could go on, but I will leave my colleague some chances to ask Mr Magnusson some questions.
Mr Carr: First of all, I wanted to thank you for appearing here and also for a lot of the fine work I am sure a lot of your group does. The question I have is along the same line as the previous one. If this legislation goes through, I am wondering how you see your group fitting in. I guess it is very difficult to do that. One of the things that may happen is that you may be pushed aside, but there also could be the opportunity that some of the people who are doing the volunteer work would be the ones who would step forward. Just based on your best estimate, how do you see it working if the bill goes through?
Mr Magnusson: I see the need for our group will always be there, because this legislation only addresses the fact of vulnerable people. Not all people with disabilities are vulnerable. I can go into the horror stories locally of how even our municipal offices are not accessible to a person with a wheelchair. These kind of needs will -- hopefully soon -- eventually get dealt with and overcome, but I do not see how our group will be pushed aside or be in -- I do not know how to say it -- competing with what the Advocacy Act would do.
Mr Carr: What you seem to be saying is that it is a case of priorities. You see other areas as a priority, because what you talked about really was having some service, particularly in some of the smaller communities. What you are saying is we do not have those services and that is what we should be pushing, rather than spending time on this bill. In the overall scheme of things, is that basically what you are saying?
Mr Magnusson: There is definitely a need for basic services throughout all smaller communities where there are either no or very small parts of service, yes. This is the kind of thing I have tried to come and bring to the attention of this committee.
Mr Carr: With regard to that, I am interested in the process of how you have done that in the past, tried to get some of your messages forward and carried that. Is there anything else you have been doing? I am sure you have been working very hard in that regard and probably could tell us a number of committees you appeared before and on and so on, but maybe you could just enlighten us on how you see yourself pushing for that.
Mr Magnusson: From a very local level, we work on almost all the issues that relate to people with disabilities. Currently we are making presentations to the long-term care redirection, the employment equity commissioner. When she came to Thunder Bay I made a presentation. While I was in Toronto, I just got getting human rights enforced effectively and an appointment to make a presentation to the committee, totally all on a voluntary basis.
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Mr Carr: Sometimes I think we get tied down in thinking that we are not making very much progress, and maybe we are not, but I just want to say that we have moved ahead over the last little while. I wonder what your feelings were overall about the progress that has been made, particularly as it relates to your area. Is it slower than you would like? Do you see some movement? Maybe you could just give us an assessment of how you see it.
Mr Magnusson: I have followed the Advocacy Act very closely since it came out at first reading. Things have been very slow, especially carrying it down into smaller communities. I see the work we are doing and the funding definitely is not available. Our particular small local group worked on a community action fund of $5,000 last year. It is not very much money for anyone to work on to open an office -- all voluntary staff. It definitely needs a lot of work.
There has been progress made. As I pointed out to the Ombudsman in Kenora last week when she was there, unless you are among the top people with disabilities and have some mobility, you would not be able to get into her office. She said she would look into this. There are other facts, like provincial money being spent in our town on the library, for instance, instead of having as a priority services for people with disabilities. In the future there will be a contract to maybe put a ramp in the front door.
Ms Carter: You seem to have several concerns here. I hope eventually it will prove that things are going to work the way you want them to.
One concern you have seems to be the training of advocates. In the act as it is now that is not really set out; there are no guidelines for the training of advocates. That is because we are leaving it to the commission to make those decisions when it is set up, because we do not think that is something the government should decide. As you may know, the body that is going to choose the people on the commission is going to include people from all kinds of different categories as set out in section 15 of the act. I do not know whether you have looked at that.
Mr Magnusson: Yes, I have, very well.
Ms Carter: It does include all the different categories of consumers, which would give you people a chance to be part of that and then maybe to actually be on the commission when it is chosen. I hope you will, in fact, in that kind of way, get input into how the training is going to take place. I do not think the idea is to have people getting some kind of fancy certificate or doing fancy college courses. I think probably experience and so on is going to be taken into account. Do you have any ideas as to how that might work out?
Mr Magnusson: In speaking of section 15, in section 13 I see that this advisory committee would be only eight people and I do not see how --
Ms Carter: No.
Mr Magnusson: Clause 13(1)(a) says, "eight persons appointed by the minister, each having first been nominated by the organizations belonging to one of eight categories described in subsection 15(1)."
Ms Carter: No, it says at least 20 members.
Mr Magnusson: I have not seen that.
Ms Carter: Subsection 15(2), after listing all those categories, says -- I am sorry. No. The organizations --
Mr Magnusson: The organizations must have 20 members.
Ms Carter: The organizations must have at least 20 people. Yes.
Mr Magnusson: In my town of Keewatin the population is only 2,500. Having 20 people with disabilities and working on a voluntary basis in a group could be a problem in that town. Not in our town, because we have a very active voice, but in other small towns I could see this being a problem.
As section 13 says this committee would only be set up with eight persons, it is a concern about how you can get a cross-section of Ontario out of eight people.
Ms Carter: No. There are additional people. It is eight appointed by the minister. Would counsel like to come in on that and clear up this point?
Ms Spinks: The appointments advisory committee will be composed of 10 people, eight nominated by the groups and two appointed by the minister.
Ms Carter: The point is that those people are going to help choose the actual commission and then the commission itself is going to look into the whole question of how advocates should be trained. There is nothing cut and dried about that, and you can still have input into how that is going to turn out.
Mr Magnusson: Yes.
Ms Carter: Do you see your group playing a role in the education process when the act comes into force?
Mr Magnusson: Oh, yes, definitely. In sitting with our local committee for skills development, we are looking at the projects of training the trainers. I definitely see how Persons United for Self-Help in Ontario and in the regions could fit into this, yes.
Ms Carter: That is how we want it to be. You also have concerns that existing volunteers are going to be set aside somehow. Again, I do not think that is something that is envisaged in the act. We want to see existing volunteers empowered by the legislation. The more formal, paid advocates hopefully will act as a resource to help those people be more effective in what they are already doing. Could you comment on that?
Mr Magnusson: Yes. In going over the act, I see the place for the volunteer, but it would also encompass the rules and regulations you would put on the provincial advocates. On an individual basis, I see how this could be very good. On the issue basis of how we work now, I do not think conflict of interest or the Freedom of Information and Protection of Privacy Act would come into it, because we do not deal with individual people; we deal with individual issues, housing issues or transportation issues.
Ms Carter: Of course that comes into advocacy too. The advocate is going to have two functions. One is to listen to individual people who are vulnerable or not being treated right and just carry out their wishes, not force anything upon them at all. The other thing they can do is, if they find that a lot of people have the same problems because of the way the system works, they can do things to change the system.
Mr Magnusson: Yes. I have found that in making briefs to these kinds of committees and commissions, they do help. There is definitely a place for a voice.
Ms Carter: Okay. Thank you.
The Chair: Mr Magnusson, on behalf of this committee, I would like to thank you for taking the time out and coming down this morning and giving us your presentation.
Mr Magnusson: Thank you.
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ONTARIO PSYCHOLOGICAL ASSOCIATION
The Chair: I would like to call forward our next presenters, from the Ontario Psychological Association. Good morning. Just to remind you, you will be given a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you are comfortable, please identify yourselves for the record and then proceed.
Dr Nielson: I am Dr Warren Nielson, president-elect of the Ontario Psychological Association. I am also the former chair of OPA's legislation committee and presently chief of psychology at University Hospital in London. With me is Dr Ruth Berman, executive director of our association.
The Ontario Psychological Association is the voluntary organization representing the profession of psychology in Ontario. Our membership of approximately 1,400 includes psychologists, psychometrists and graduate students in psychology.
We are pleased to appear before the committee this morning to comment on Bills 108, 109 and 74. The OPA has followed the development of these bills with great interest and regards them as important legislation for enhancing and protecting the rights of Ontario citizens.
First I would like to turn to Bill 109. The proposed act is an attempt to deal in a comprehensive manner with issues of consent with respect to all forms of health care treatment. We agree that the act should apply to all regulated health practitioners and across all health care settings. We strongly support the principle of consent as a requirement for health care and are pleased to see that an intent of the legislation is to codify the elements of consent and define the term "informed consent." The OPA is pleased that the legislation recognizes that capacity is not a global concept and specifies that consent must be related to specific treatments.
Bill 109 sets out the procedures to be followed by substitute decision-makers on behalf of incapable individuals and provides direction to health care practitioners in clarifying who may be entitled to act on another's behalf. The proposed act also defines the provisions under which emergency treatment may occur in the absence of consent. Finally, this bill establishes a Consent and Capacity Review Board, which has the power to review findings of incapacity, appoint representatives for incapable individuals give direction to substitute decision-makers, as well as give direction with respect to instructions and wishes that are unclear.
While we support the above provisions and their intent, there are some aspects of this bill that we find to be poorly delineated or of some concern.
The first of these is the definition of "treatment." Subsection 1(1) includes diagnostic procedures under the definition of "treatment." Some psychodiagnostic assessment procedures are conducted for the express purpose of determining an individual's mental or cognitive capacities -- for example, a neuropsychological evaluation of a head-injured client. Obtaining informed consent for such procedures requires that some judgement of capacity be made prior to test administration. In many instances, because of the nature of the patient's presenting problem, a judgement of incapacity is difficult to make prior to and in the absence of the testing procedure. Is it the intent of the legislation to apply the same provisions for consent in circumstances where the purpose of the treatment is to determine mental capacity?
2. Subsection 5(3) allows for consent to be either expressed or implied. In its current form, the legislation offers no definition of the circumstances under which consent may be implied. In the absence of a definition, both practitioners and patients will be left on their own to determine a definition of the term "implied." Moreover, situations may occur where practitioners and patients may have different interpretations of what is intended. When such circumstances arise, how will these differences be resolved?
3. Subsection 5(2) outlines the definition of "informed consent." As defined, it is unclear what the phrase "all the information about the treatment" means. In the course of psychological practice, psychologists would be obliged to inform their patients about "alternative courses of action and the material effects, risks and side-effects" of treatments or diagnostic procedures. However, many of the diagnostic instruments used by psychologists require a degree of naïveté on the part of the patient. If they are required to provide all the information about the treatment, many of the diagnostic procedures in use may be invalidated, and hence useless for their purpose. Clear guidelines as to the amount of information to be made available to patients should be provided within the legislation. If full disclosure is required under the legislation, we would suggest some form of exemption in the case of psychodiagnostic procedures.
Another issue that should be considered in the matter of informed consent involves the patients' right to choose how much information they would like given to them. While we agree that in most circumstances practitioners have an obligation to offer patients all the information about the treatment, we also believe patients should have the right to decline detailed information if they so choose. For example, a patient who is about to undergo a painful or emotionally distressing medical procedure may elect to decline detailed information in order to better cope with the circumstances. Compelling an individual to receive complete information in such circumstances may place him at higher risk for poor treatment outcome and adverse psychological sequelae.
4. Sections 32 through 42 establish the Consent and Capacity Review Board, whose purpose is to hear appeals and consider requests for reviews of status with respect to incapacity. We believe that given the particular expertise of psychologists in assessing mental competencies, consideration should be given to the appointment of a psychologist to this board and, as well, for the inclusion of psychologists among those with expertise in evaluating capacity for the purpose of serving on panels, as per subsection 35(3).
5. Under section 45, the Lieutenant Governor in Council may make regulations prescribing forms for the purpose of subsection 5(4), may prescribe criteria to be applied and standards and procedures to be followed in determining capacity. The OPA would encourage that in both circumstances the regulatory bodies for those health practitioners who might be affected under section 45 be consulted during drafting of these regulations. The respective professional regulatory bodies are responsible under statute for setting and monitoring adherence to standards of practice for members of their professions. Their involvement in the development of these regulations is therefore essential.
6. We would encourage that consideration be given to including in the definition of "informed consent" a requirement that the patient be advised about the limits of confidentiality with respect to the treatment in question. For example, patients should be aware that the confidential nature of their health record may be limited by other statutory requirements, such as in the case of child abuse or precedents in common law, such as the duty to warn.
7. Psychologists provide services in a variety of treatment settings that are governed under different statutes. Subsection 37(2) makes reference only to the Mental Health Act and Child and Family Services Act and excludes, for example, the Public Hospitals Act and the Education Act, as neither of these statutes currently has provisions regarding withholding of records for persons with mental disorders. As a result, patients treated by psychologists in facilities governed by, for example, the Mental Health Act will have differential access to their records as compared to individuals seen by a psychologist in a facility as defined under the Public Hospitals Act.
We believe that this inconsistency should be addressed by making the necessary legislative amendments to ensure that subsection 37(2) is applied equally to all individuals affected. Similarly, subsection 39(2) should be amended to require that all clinical records be returned to their point of origin, irrespective of whether or not that facility is governed under subsection 35(1) of the Mental Health Act.
Regarding Bill 108, the OPA supports the intent of Bill 108 and endorses the concept of enabling competent individuals to predetermine the manner in which they shall be cared for and their property managed in the event they should become incapacitated. This principle is consistent with the values and goals of professional psychology, which support the development of individuals and their capacity for autonomy and self-determination.
Bill 108 also attempts to preserve the rights of individuals whose competence may be in question such that their interests and wellbeing are safeguarded. In addition, provisions have been made for designation of health care practitioners who would be responsible for determining an individual's mental capacity with respect to his ability to care for himself and manage his property.
Unique to the practice of psychology is the availability of scientifically based, objective measures of cognitive and social competency. Judgements of this nature form the core of psychologists' diagnostic expertise and are central to our clinical practice. These skills are widely recognized within the health care community and have been recently recognized within the new Health Professions Act. The contributions of psychologists as diagnosticians have already been acknowledged in statutes such the Courts of Justice Act, the Evidence Act and the Automobile Insurance Rates Control Act. Requests for such diagnostic opinions are commonly made to psychologists by physicians, including such specialists as psychiatrists and neurologists.
Psychologists are concerned with those sections of Bill 108 which include references to the definition, training and regulation of assessors of competency. In this regard, the Ontario Psychological Association is in full support of the recommendations for amendment previously submitted to you by the Ontario Board of Examiners in Psychology. Thus we wish to draw your attention to a number of issues which we feel are of particular significance.
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In the interest of public protection we would recommend that those individuals to be designated assessors within the regulations be selected from among those professions regulated under the new health disciplines legislation. The determination of mental incapacity is, for all intents and purposes, a diagnostic act. Therefore, we propose that the selection of assessors be from among those service providers currently recognized in the RHPA as authorized to diagnose mental disorders and diseases. This would currently limit the definition of assessors to specific medical specialties and psychology. In this manner, public protection could be ensured through the regulatory mechanisms and quality assurance programs of colleges under the RHPA.
At this time, some sections of the bill explicitly name only physicians as assessors. As has been previously recommended by two government-sponsored inquiries -- the Fram commission and the Weisstub inquiry -- we strongly encourage the inclusion of psychologists as among those qualified to perform assessments of capacity. Psychologists are historically recognized as principally responsible for the development and application of scientifically based instruments for measurement of cognitive and social capacity. In light of this special expertise, it is surprising that the bill fails to specifically name psychologists as assessors. We recommend that both psychologists and physicians be identified as assessors of capacity in this legislation.
A number of amendments that we recommend are before you. We also recommend, as did the Ontario Board of Examiners in Psychology, that all competency determinations, whether positive or negative, should be documented and forwarded to the public guardian and trustee. The legislation as drafted has no requirement for the reporting of negative findings. This oversight may lead to the phenomenon of assessor shopping for the purposes of eventually securing a confirmation of incapacity. The rendering of a negative finding may be important in particular cases and the failure to document such information may impact on the status of some individuals where such information may bear on important decisions.
Bill 74: The OPA supports the principle of ensuring that vulnerable persons have access to advocacy services in cases where they have difficulty expressing or acting on their wishes or in ascertaining or exercising their rights. We agree that in some circumstances there may be a need and an important role for an official advocate. However, we do not believe that such intervention is warranted in all cases, and propose a more restricted and better-delineated scope of application for formal advocacy services.
Subsection 3(1) of Bill 74 states that the act applies to vulnerable persons who are "16 years of age or older," and subsection 10(7) of Bill 109 indicates that similar provisions would apply in circumstances in which an individual who is less than 16 years old demonstrates "a wish to give or refuse consent to the treatment on his or her own behalf." If it is the intent of the legislation to apply in all such cases, we are concerned that the role traditionally reserved for family members, legal guardians or other care givers, will be significantly reduced, if not eliminated entirely. Moreover, it is difficult for us to support, in a time of economic restraint, the introduction of an administratively complex and very expensive bureaucratic system.
We wish to express as well serious concerns regarding the wisdom of providing a system which could inadvertently harm those individuals the legislation is meant to protect. Bill 74 sets out requirements for the use of advocates in a manner that could potentially interfere with the provision of essential, effective and timely care, possibly resulting in a loss of life. Thus, we encourage a re-examination of Bill 74 in light of these concerns. We understand and respect the principles that have guided the development of this bill. However, we are concerned that this legislation may not truly meet the needs of our vulnerable populations, may obstruct the capacity of health care providers in their efforts to provide efficient and effective service, and will deny family members and care givers the right to fulfil their traditional role as advocates. We thank you for your attention and would be pleased to answer any questions you might have.
The Chair: Thank you. Each caucus will have about five minutes for questions.
Mr Poirier: Thank you for coming forward. It is an interesting perspective you have as health care providers, if I may refer to you as this. I think I can, unless you object.
Dr Nielson: Absolutely.
Mr Poirier: You are not physicians, obviously, but I am glad that -- and I think your request that psychologists be considered, especially as assessors -- if you guys cannot do it, I am not going to go to my mechanic, I guess, to get it done, really. So I hope the PA and the government will be sensitive to that request.
I would have thought, if I may give a constructive criticism, that you would have gone maybe into more detail as to what particular aspect caused you a problem. On your second-last page, when you look at Bill 74 -- and I think the same request I can make also for the other bills -- "serious concerns regarding the wisdom of providing a system which could inadvertently harm those individuals the legislation is meant to protect." The same with consent to treatment -- obviously people are brought to you or come to you to get an assessment of their mental capacity, for example. Fair enough. But other health care providers do not have your training to be able to make that assessment, and yet before they can do anything they are supposed to do to give treatment, whether in an emergency situation or not, they must be able to assess what their mental capacity is.
So the irony of it all is that non-psychologists have to be able to assess mental capacity as to whether they are capable or not, whereas you people seem to claim here that you need to go through the process before you can state, "You're vulnerable," or "You're incapable," or not. I find that an interesting comparison between your group and other health care giver groups.
Some people who have come from other groups also state, "Well, we don't have the training, yet maybe you expect us to be able to look at the person and right away say, `No, I can't treat you because I suspect that you're vulnerable and incapable.'" Any comments on that? I find that interesting.
Dr Neilson: We see this process of looking at somebody's mental capacity as a very complex one that requires a fair amount of training if somebody is going to be doing it in an effective and competent manner. So that is probably why our perspective is a little bit different than other people's. It is an area that is probably, as I was saying, sort of a core element of what a psychologist does.
Mr Poirier: If I were to be an assessor, I would rather be in your shoes with your baggage of knowledge and capabilities to be able to judge, rather than the other health care providers who are going to have to pass the same type of judgement you will and yet not be as equipped as you are to do it.
Dr Berman: I think that many health care providers, on the basis of their knowledge and experience, can make some initial judgement on the basis of a patient's presentation and perhaps generate a hypothesis about that individual being capable or incapable.
Mr Poirier: Of course.
Dr Berman: Formal psychological assessment, though, looks at a variety of cognitive and mental functions in a very specific kind of way, in a way that cannot be determined or evaluated on the basis of simply a clinical interview.
Mr Poirier: I would have thought you would have expanded more on Bill 109. I would have really thought that. Not saying that it does not affect you or your profession, but there must be some other points. If I am basing myself on the presentations of other groups of health care providers, I would have thought that, of all people, you might have been able to expand even more on some of the problems that Bill 109 could end up causing you as a profession, as individuals in your profession.
Do I exaggerate? How do you feel about this statement? Do you feel there are other points you could evolve, or is that it? I know this sounds like a leading question. But just tell me, "No, you're way overboard," if you think so.
Dr Berman: The purpose of the presentation was to try and highlight some of the things we saw as sort of central for us. Your comment about other health care providers coming forward and saying that Bill 109 puts them in some difficulty because they are being asked to make a judgement about somebody's capacity without having any training: It is difficult for us to speak on behalf of other health care providers.
Mr Poirier: Of course.
Dr Berman: The legislation seems to allow for an assessment of capacity to be made specific to the particular treatment that the individual is being considered for. To some extent, while psychologists can assess capacity in a general way -- for example, I am not a speech pathologist and I believe that a speech pathologist would be able to make some initial judgement as to whether that individual would be able to grant consent to speech therapy.
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Mr J. Wilson: Thank you very much for your presentation. Unlike my colleague Mr Ironside -- excuse me, Mr Poirier -- I felt it was a very good presentation, an excellent addendum to what we have heard before. I just thought I would liven things up this morning. I like to do that once in a while.
Have you seen the PC amendments that have been put forward?
Dr Berman: Yes.
Mr J. Wilson: We had asked the clerk to make sure that groups had those. I think we are very close to agreement, if not right on, with the amendment we put forward with respect to definition of treatment and, second, with respect to age 16 and competency, and we are encouraging the government to bring forward similar amendments so we can ensure they will get passed.
Mr Poirier: Once they start working on them, right?
Mr J. Wilson: That is a good point.
I was very interested to note one point I do not think I had heard before: the patient's right to decline information. I thought that whole section there was quite well done, and also the pointing out to us -- because we are not psychologists, or I do not have that training, that is for sure -- that certain diagnostic instruments require a degree of naïveté, and I understand where you are coming from there.
I do want to ask you a question about Bill 74, because I think your presentation follows very closely what I and my colleagues have been saying, that we are not very happy at all with Bill 74 and have asked the government to redraft that and take a step back and see if we cannot come up with a better system, perhaps less costly, and you mentioned that in your presentation. But we think with some major amendments to Bills 109 and 108 we can probably live with that legislation. The government has been going in the opposite direction. They want to push Bill 74 and rumours are they are -- well, I do not know what they are going to do with Bills 108 and 109.
We presently do have advocates in the psychiatric hospitals. Can you tell me your experience with that, and would our resources perhaps be better spent on enhancing that advocacy system that exists? I will just say that much of the testimony we have had is that there is the real need in the area of mental health and perhaps there is not the need in the day-to-day health care settings of regular hospitals for advocacy services. Perhaps you could comment, please.
Dr Berman: I would agree with you. There are some advocacy services that are currently available. I think our preference would be to see those services enhanced and reinforced.
I guess, from my point of view, there is a certain message that is being delivered by this legislation, and that is that in the health care field there is a mistrust of service providers and there is a need to protect patients from potential abuse by health care providers.
In addition to reinforcing existing advocacy service, I think we should also reinforce greater education for health care providers, and I think the new Regulated Health Professions Act, with its emphasis on quality assurance and adherence to standards and accountability, will serve as well to protect individual rights. I think part of the onus for this rests with service providers in educating them about patients' rights and making sure that adherence to standards and ethical principles is followed.
Mr Winninger: Thank you for coming today. I certainly enjoyed your presentation. I am just going to direct one question to Bill 108 and let my colleagues address your other concerns.
A number of professional bodies, like yourself, have come forward and suggested that just because one is a physician does not mean that one has the necessary background, training and knowledge to conduct assessments. I just wonder if you would be satisfied were the word "physician" to be removed in section 50 and section 70 and some of the other related sections rather than adding in a list of all those professions that feel they have equal knowledge, background and training to conduct assessments.
Dr Berman: Some form of definition of who can conduct competency assessments has to appear either in the act or in the regulations. You either include the other groups in the act or you take out who is there now in the act and define them in the regulations. The legislation is inconsistent. At one point it says "assessor" will be defined in the regulations but at other places it makes reference to physicians, so it presupposes. It should be either/or.
Mr Winninger: I am just asking you whether deleting the word "physician" would satisfy your concern. Then assessors would be prescribed by regulation.
Dr Nielson: Yes.
Mr Winninger: Thank you.
Mr Wessenger: Thank you very much for your presentation. I enjoyed it and I also thought it took a very constructive approach with respect to Bill 109. I would like to ask you a question with respect to your criticism of all the information about treatment. As you know, that should be read in other words, "that a reasonable person in the same circumstances would require in order to make a decision," so it is qualifying by a reasonable test.
Would you feel more comfortable with that section if the word "all" were removed and it just said "the information"?
Dr Berman: Given our comments about diagnostic tests used by psychologists, I think I would be more comfortable with it.
Mr Wessenger: Fine. The other thing I would just like to comment on is your comments with respect to the matter of confidentiality. I must indicate to you that our ministry agrees with you in that regard. We believe this should be dealt with separately, and certainly it is the intention to deal with it in the future under health care information and the privacy act.
Ms Akande: I was going to ask about assessment, but I think that has been well covered. One question constantly nags at me, though, that has been brought up by several groups: advocacy -- the feeling that the system that is in place now is sufficient to care for the needs of patients. My concern is this: Certainly there is a great deal of information out there that says, "In spite of the fact that there are systems in place, in spite of the fact that the medical and other professions have the best intentions, in spite of the fact that most people do the right thing, there are those who in fact have suffered." We have heard from some of those people. In view of that need, we have tried to design as broad a system as possible. Timeliness, getting the right treatment to the right person on time, is of course always a concern. In spite of what I have said and what you already know, are you of the opinion that this act is unnecessary?
Dr Nielson: I guess we feel the problems that led to the writing of this act could be addressed in a different way. I think the problems arose partly from individual problems with regard to specific health professions, and that with the new Regulated Health Professions Act these sorts of questions could be addressed in the context of the regulatory bodies. They have the power now, I think, to make changes so that these sorts of problems do not arise nearly as frequently as they have in the past. I think it is also what Dr Berman said about education of professionals. I think that is the real problem.
Ms Akande: Of course education does take time, does it not?
Dr Nielson: Yes.
The Chair: Dr Nielson and Dr Berman, on behalf of this committee I would like to thank you for taking the time out this morning and bringing us your presentation.
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ONTARIO MEDICAL ASSOCIATION
The Chair: I would like to call forward our next presenters, from the Ontario Medical Association. Good morning. I remind you that you will be allowed a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you are comfortable, please identify yourselves for the record and then proceed.
Dr Warrack: I am Ian Warrack. I am a GP from Vanier and a member of the Ontario Medical Association's board of directors. First, I would like to thank the committee for giving us the opportunity to speak today. On my right is Ted Boadway, a physician and director of health policy at the OMA, and on my left is Barb LeBlanc, who is also from the OMA staff and is the brains behind our response.
Ms LeBlanc: Blame it on me. Fine.
Dr Warrack: The OMA represents the province's 20,000 physicians and has as its mission: "to serve the medical profession and the people of Ontario in the pursuit of good health and excellence in health care." Examining proposed legislation such as this is one of the ways we fulfil that mission.
As I understand it, the primary purpose of these three pieces of legislation is to enhance and protect the dignity, rights and autonomy of vulnerable adults, particularly in matters pertaining to health care. The OMA has some serious concerns about the ability of this legislation to achieve its intended purpose. In addition, I believe this legislation will have some unintended consequences which will in fact result in poorer quality of life for some of the people it is attempting to assist because of delays to health care. We will use some case examples to illustrate our concerns and to demonstrate what this legislation will mean for patients.
The legislation we have before us is, quite simply, not workable. I believe this has happened because the government did not anticipate the impact of this legislation in the real world when it wrote it. The OMA has been working for a number of months to convey this message to government, but we do not feel confident we have been understood. We will highlight some of the key issues of concern from a physician perspective. Our comments will focus primarily on the relationship between advocacy and consent to treatment, since that is the area that will have the greatest impact on the delivery of health services.
This should not be taken to mean that we do not have concerns about the other acts; we do. In fact, the OMA believes that both the public and health care practitioners would benefit from the introduction of good legislation on consent and substitute decision-making. We also believe that protection for vulnerable people who are at risk of harm is important. We do not, however, support a fast-tracking of the Advocacy Act as standalone legislation.
Dr Boadway: As Dr Warrack has just said, this legislation, although founded on very laudable intentions, is seriously flawed. This has occurred at least partly as a result of the process that took place during the initial drafting stages. If one looks at modern management theory that is extant in the world, it has become clear over the past 20 years or so that in order to make a system work, whether this system is building cars or is a health care system, it is essential to have input from all levels: consumers, management and line workers. In this case, government recognized only part of the equation. The legislation we have before us reflects a significant appreciation of the consumer perspective, and that is not surprising since a fair amount of consultation apparently occurred between government and consumer groups during the drafting process.
Where the legislation breaks down, however, is at the point of implementation. This is due to the fact the government failed to consult with the line workers during the drafting stage. It is difficult, taxing and detailed work -- painstaking work -- that we are a part of. You will notice that in our appendix we have many constructive procedural recommendations in that regard. In this case, however, the line workers are the providers of health care services, and at some level we should have tested the practicability of the proposed system.
Dr Warrack: One of the most serious consequences resulting from government's lack of understanding about the actual delivery of care is the implicit notion that treatment delays are not harmful. That is quite simply not so. To illustrate, let me use an example.
An elderly woman who is living in her own home is capable to manage her own affairs. As her GP, I get a call from her daughter who has stopped by for a visit, saying that her mum has become confused. There is no apparent reason for this. I visit her and I suspect that there is an underlying physical problem. It is a very common problem in general practice, particularly when you are dealing with the elderly. However, I cannot be certain, because there are no immediate apparent physical symptoms and there are a number of possibilities that it could be. It could be a urine infection or it could be focal pneumonia. She could even have a minor stroke.
Since her confusion alone is not sufficient grounds to invoke the emergency provisions of the act, I would simply have to advise her that I consider her incapable and contact an advocate to meet with her. I cannot provide any treatment during that period. I cannot even take blood to determine whether there is an infection.
The problem here is that the elderly tend to deteriorate very quickly when faced with an even relatively minor physical insult, and that means if the woman is suffering from pneumonia, the delay in starting antibiotics could cause irreversible damage or even kill her. This is inhumane, and what you have done is develop legislation that will cause a decline in the quality of care available to incapable persons.
Dr Boadway: This legislation, in essence, invites system failure by asking physicians and other health care providers to do things they are not likely ever to be capable of doing, quite frankly. For example, an onus is placed on health care practitioners to ascertain which instruction to act upon in a treatment situation. Among the possibilities to sort through are validated powers of attorney, non-validated powers of attorney, oral wishes expressed subsequent to the power of attorney as relayed by a third party, instructions from family members as well as the present wishes of the incapable person. Physicians, I can tell you, are unlikely ever to master all the legalities involved in ascertaining what constitutes a reliable wish. The legislation must make it much clearer. This is especially important since physicians will be held legally liable for failure to comply with the requirements of the act and will be open to complaint and civil liability for the care they provide.
This, by the way, is only one example. There are other complex lists involved in the legislation which will be required for physicians and other health care workers to master. The problem is that health care workers are not lawyers, and even our lawyers are having difficulty explaining to us just how it will work.
Dr Warrack: One of the areas of major concern for physicians concerns the sections of the act relating to emergency services. It appears that government is attempting to provide some opportunity for prompt action in the event of dire circumstances. However, the reality of emergency care does not conform to the tidy perimeters outlined in the legislation. The notion that serious consequence will occur within 12 hours is completely arbitrary and has no practical basis. In addition, the reporting requirements following the provision of emergency treatment are absurd. Again, let me use another example to illustrate.
A young man comes into the emergency department following a motor vehicle accident. He appears to have superficial injuries, a few cuts and scrapes, but he is dazed and not quite lucid. I must therefore contact an advocate before proceeding with treatment. It is important to realize that the definition of "treatment" under the act includes anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose. This means I cannot run any tests on him or do a physical examination. What if he was suffering from pneumothorax, a punctured lung? Although there would be no outward signs of a problem, he could die very suddenly within the hour, and this would happen because I had not been able to listen to his chest with a stethoscope, hear the air escaping, and insert a chest tube. This is the reality of this legislation.
Dr Boadway: Now that is a case where a physician, faced with a patient, cannot know there is an emergency developing but could easily ascertain if he could do a simple examination. They cannot know. It is not a matter of making a decision.
What would happen if you had a situation so clear-cut that you could invoke the emergency provisions? Imagine another motor vehicle accident where a young woman is hit by a truck on a highway in northern Ontario. She is taken by ambulance to the local hospital and met by the physician on duty, a family doctor with an interest in emergency medicine and two duty nurses. The ambulance service has alerted the hospital ahead of time and they are ready for her arrival.
It is immediately clear that the woman meets the emergency criteria under the act. She is bleeding profusely, has a number of broken bones, distinct evidence of internal injuries and is not conscious. It is possible that she has a significant head injury. The hospital, however, is not equipped to handle this type of emergency, so an effort is made to stabilize the woman's condition so that she can survive the transfer to a larger hospital. Arrangements are made and she is flown to Sudbury, the nearest specialty centre, by air ambulance.
When she arrives, a team is assembled and waiting. This team includes a physician, several perhaps -- internal medicine specialist, orthopaedic surgeon and neurology have to be assembled. You have to have a specialist nursing team, radiologists have to be available, radiology technicians, laboratory technicians, and all of these have to be available to see the patient quickly. After each of these health care professionals has contributed to the life-saving effort, they will be required to notify the public guardian and trustee. In a case like this, there could be as many as 30 or more individuals, as a very realistic estimate, of the number who must report to the public guardian and trustee because each health care practitioner who administers treatment must. This would include all the hospital personnel in both hospitals plus the transfer people. We have quite serious concerns about whose needs are being met here, just how much work is involved and what people will do with the confetti so generated.
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Dr Warrack: These examples demonstrate not only the problems with the emergency provision of the act but also the difficulties that are likely to occur due to the very broad definition of "treatment" which is used.
As drafted, this legislation would not only hinder physicians in making timely diagnoses; it would also affect many other health professionals in their ability to deliver care. For example, a nurse could not change a dressing, take a temperature or blood pressure. They are all simple procedures but crucial for care.
Many of these problems are the result of government attempting to transpose the framework for the mental health system on to acute care medicine. I am concerned that the proponents of this system cannot see the differences.
The last specific area that we would like to address is the age presumptions under the Consent Act. I understand that several other groups have already expressed their concerns about this, so I will not go into it in detail, but I will simply note that although I realize that the age presumptions, as written, do not preclude an adolescent from seeking health care independent of his or her parents, there is a tremendous concern that physicians and teenagers will misunderstand this clause, with negative results.
Dr Boadway: A second important point we will make briefly relating to children should also be mentioned. We hope that the clause permitting a young child to make treatment decisions is reviewed; it will have to be, quite frankly. I understand from the minister's comments in the press that there was never an intention to permit youngsters to refuse inoculations. It is, however, the reality of the present legislation, and we known it will have to be addressed.
Dr Warrack: To close, I would like to return to the question of implementation. The system that is proposed is complex, unwieldy and expensive. The legislation will have to be understood by all kinds of people not normally accustomed to interpreting legislation: doctors, other health care workers, families and the general public. I am not all that confident that will be possible.
The proposed system will require a significant number of advocates and assessors throughout the province. In addition, the success of a centralized public guardian and trustee office will be dependent upon its ability to process huge quantities of information effectively and efficiently, and that means a sophisticated computer system will be required, one that can be accessed from around the province.
Dr Boadway: Looking specifically at the delivery of medical care, it is clear that additional visits to doctors will be required. You had a very nice graphic demonstration brought to you by Dr Gordon, whom I thought did it better than I could, so we will just leave it with that. The initial visit and return visit following the meeting with the advocate will be often just de rigueur.
It can also be expected that specialists' consultations for competency assessments will escalate significantly. I predict that you will have a blip in the utilization factor when this legislation is brought in, and at a time when utilization is under severe attack from within government and without. To put in something which will cause an increase seems to me to be counterproductive at this point.
The Ontario Medical Association is troubled that government plans to forge ahead with plans to create this layer of bureaucracy and increased utilization, and at the same time it is of marginal benefit when we and many others are working diligently to get the system costs under control.
In addition to the hard costs, it is also important to look at the soft costs of the system, those that cannot be readily quantified. Increased waiting times in emergency departments, prolonged pain and suffering for patients, unwanted intrusions into people's lives and disenfranchisement of families are just a few.
A cost-benefit analysis of the impact of this legislation is required before proceeding with implementation. How much is this really going to cost?
Dr Warrack: The OMA recognizes that the current system needs improvement. However, the legislation proposed to address the concerns would create more problems than it would solve, and at considerably increased cost. There is a need to better protect the vulnerable in our society and to promote autonomy where possible, there is a need to clarify the rules around substitute decision-making and advanced directives, and there is definitely a need to develop clear processes for the giving of consent. Unfortunately the legislation before us not only fails to achieve those goals; it would make the current system, although not perfect, completely unworkable.
The OMA respectfully suggests that this legislation be withdrawn and reconsidered, starting with a new consultation process, one that incorporates input received from not only patient rights and interest groups but also families, health care providers and other relevant stakeholders. Thank you very much, and we would now be pleased to take any questions on any of the three acts.
The Chair: Each caucus will be allowed five minutes.
Mr Poirier: Thank you very much for taking the time and especially for supplying a very exhaustive list of proposals. Obviously you are quite correct: We only need to try to put ourselves in your shoes, especially in an emergency situation. It becomes the Grand Canyon between the theoretical principle of this and the practical application, and I think you, as health care providers, are best placed to understand that. The gap is just too unrealistic. With the cost of all this, I think it is going to be the Treasurer who is going to tell the people there is no way we can afford to do this.
If each of the health care providers -- as you say, 30 doctors have to work on one particular patient after a particular accident -- will have to contact the public trustee and guardian, thank God my hero is Monty Python. If I did not have Monty Python, how the hell could I sit here and just go through this and say, "What are you trying to do?"
Mr Winninger: That is where your party policies come from, is it not?
Mr Poirier: That is right; exactly. The minister of silly walks, of course.
Thank you for bringing it forward. I can only hope that your specific observations and suggestions will be taken into account. If not, we in the opposition parties will gladly help them to remember and will remind them that between the theory and the practical application there is a hell of a gap.
Mr Mancini: First of all, let me thank you for your brief. I thought it was quite good and quite important to the work of this committee. Did I understand correctly that you stated there was no real consultation between the government and your organization?
Ms LeBlanc: I think the important thing is that during the initial drafting stages, particularly when it came to the Advocacy Act, we were unaware of the act until it reached second reading. In terms of what has happened subsequently we have had numerous meetings with each of the ministries involved, but during the drafting stages we were not involved at all.
Mr Mancini: You did not have any input or any opportunity to correct any errors before they were made?
Ms LeBlanc: We did not.
Dr Boadway: It depends how far back you go, too. If you go back far enough to some commissions that occurred, we were part of that. The absolute nub of making these things work is when it comes to the drafting. We have been involved in this before. It could be constructive.
Mr Mancini: I would think that if a new government is going to proceed with important legislation to assure itself that it has everyone's opinion and is doing things correctly it would want to consult an organization like OMA.
I understood you to say that health care in general is going to decline because of this legislation. You gave two or three examples. I am sure that if you were pressed you could probably give us 100 examples or maybe 1,000 examples. The job of the practitioner is to serve the individual who needs that service at that time. I wonder how it would be possible for the medical practitioners in this province to sit in their offices and say, "No, I can't serve you." Are you actually going to be able to do that? If my young daughter ends up in your clinic or in your emergency room, would you actually not give service?
Dr Warrack: Following the act is certainly going to make giving treatment very difficult in a lot of circumstances: in institutions, whether they be long-term care institutions, hospitals or emergency departments, or whether it is in my office or in patients' homes. It is going to put in a lot of blocks on a lot of occasions. The way I handle patients is going to change, and that is obviously what is intended. For the vast majority of those patients the change will be for worse rather than for better.
Dr Boadway: One of the problems will be confusion. If health care workers do not have it straight in their minds -- and I am pessimistic that they will -- there will always be the pull of wanting to look after a sick patient -- that is what their life endeavour is -- and on the other hand worrying about their personal risk because their college is there and advocates are going to be watching. There always will be that push-pull. Quite frankly, that is the wrong calculation to be making in many respects.
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Mr J. Wilson: Thank you for taking time out of your busy schedules to appear this morning. I want to ask a question about Bill 74. Although you did not touch on it too extensively in your oral presentation, on page 5 of your addendum to your submission you make specific comments. You talk about the role of advocates and you talk about the need for accountability of those advocates. Because I think the government is going to go ahead with Bill 74 -- that seems to be the promise out there to the vulnerable citizens community -- we had better be somewhat constructive. Do you have any thoughts on how we can make the advocates more accountable? Right now there is no mechanism for complaint by a patient who may not be pleased with the work an advocate is doing on his or her behalf. There is also no mechanism for complaint by a member of the family or anyone else.
Dr Boadway: We have an idea. We are not sure how viable it is, but if you look at the Regulated Health Professions Act -- and both you and I were involved in that in our respective roles -- the principle followed there was that you are dealing with health care practitioners, in our case physicians, who are considered to be a powerful group with an important job. Although there is self-governance, that is too important to be left to the profession alone. Therefore there should be a very strong, independent input into this from the public. It should not be left to something like the OMA, that is sort of the champion of physicians, or their advocate, whatever you want, to do that. So it was not left to us to do it.
In this particular case, the Advocacy Commission is going to be the employer and the champion of advocates, as far as we can figure out. That is not the person whom, if a member of the public wanted to complain, they should complain to, any more than they would expect to complain to the OMA, nor, if a health care practitioner or a hospital had a problem with advocates, would that be the place to complain. We think if you have a powerful body that is identified with one group, somewhere there needs to be a body that is independent. Perhaps we need a college that can look after them, that has public input, where people can take their complaints and lodge them. You cannot leave it with the group that is their champion.
Mr J. Wilson: I appreciate your comments, and that is a suggestion the government should take very seriously. You mention that doctors are not lawyers and that really it may be very difficult for them. I can understand why, because the act is confusing and there is a lengthy list, for instance in section 16 of Bill 109, which requires the physician to obtain consent. There is a ranking order of people one must obtain consent from on behalf of an incapable person. Do you have any suggestions how we can improve that section?
Ms LeBlanc: Actually the whole idea of the hierarchy is a good one, generally. The problem is, there is a personal obligation put on the practitioner to search for all persons in any given category. When you get down into large families or perhaps grandchildren, down at the bottom of the categories, it is going to be very difficult. We have to look at it a little more practically as to what really happens. One of the easiest ways of handling that would be to accept the consent of the person who is readily available until a person of a higher rank is available and expresses an interest in making the decisions.
Mr J. Wilson: I appreciate that. Finally, I was watching the news last night and I noted a lead story about a lady at McMaster University hospital who may or may not require a bone marrow transplant. The gist of the story was, the hospital was saying: "We can't afford it. We've already done nine this year. She'll have to go somewhere else." I in no way want you to comment on the case, but it does raise the issue of costs and of scarce resources that are out there now, and you have raised it here today.
There has been no cost-benefit analysis by the government. Even when we sit down with the groups in private that are very much in favour of a new advocacy system and we ask them costs, I never get an answer that is anywhere near acceptable. It is always skirted: "The principle is so important. Cost is irrelevant." Do you have any idea, any guess, first of all, at what the advocacy system might cost? Second, what will be the additional cost to the health care system in terms of Bill 109 and Bill 108? Any estimates?
Ms LeBlanc: We have tried and I guess what we have done is very roughly thought about it. If you looked just at the advocacy requirements for hospitals, we have 223 hospitals, we have about 1,000 nursing homes and long-term care facilities, which would all probably need round-the-clock advocates, or at least a good number would. Then you start to look at the VON nurses who are in homes, physicians in their offices and homes, and then we got lost. We just could not assign costs. Then you start looking at double visits for returns. It really is quite enormous.
Dr Boadway: Just to service the hospitals alone required tens of millions of dollars' worth of workers, depending on how much you paid them and how much the overhead of carrying them was.
Mr J. Wilson: You mentioned double visits. Maybe, because my time is done, at some point you will be able to explain exactly what that is.
Mr Malkowski: It is interesting to note that we have heard from a variety of presenters -- and this has been mentioned before -- that it has been noted that when the doctors were on strike in the west, the number of deaths actually declined, which I always find an interesting statistic. We have heard from a lot of people who have come to speak who are actually psychiatric survivors, parents of disabled children, or disabled individuals themselves, who have shared their stories and their concerns.
When we talk about specific situations that are non-emergency, non-life-threatening, and I am not talking about issues of disease or chronic illness, but other situations, we found that often doctors have diagnosed disabilities in terms of fixing the disability and "normalizing" the individual. However, the disabled community does not see the situation in the same way as many medical practitioners do, and in fact feel they are normal the way they are and do not need "fixing."
There is also a great tendency to look towards institutionalization, which the community often does not support. A lot of medical experimentation has occurred and sometimes without complete information, without balancing risk and benefit and long-term effects. Often the parents have not been completely informed or the disabled individuals themselves have not had access to complete information. There have been people talking about psychiatric misdiagnoses and incorrect medication being given, which has had very negative impacts on their lives.
So do you agree that the medical professionals are responsible for giving complete information about treatment, including benefits and risks, prior to proceeding with treatment, and that that is the right of all individuals?
Dr Warrack: Certainly informed consent is important. It is paramount. In this day and age, if we do not explain the risks and benefits of treatment, then we are not doing our job properly. One of the biggest problems we have occasionally is making sure that when an explanation is given that in fact it is understood completely and totally. One of the biggest concerns I have when dealing with people in my office is: "Okay, well, here's what you've got as far as I have been able to determine. Here's what I think your options are. What would you like to do?" Often, as you know, that is the problem. They will say, "Well, what do you think, doc?" which just turns it right back on me again.
Ms LeBlanc: The other thing is, not only are you not doing your job right, you are at risk of civil liability or a complaint to the College of Physicians and Surgeons of Ontario.
The other thing that might be important to note is that during the time a lot of this experimentation etc went on, there was a different legal standard. It used to be based on what the reasonable practitioner would do. Now we have a reasonable patient standard, what the patient should know, and that has definitely changed the whole balance.
Dr Boadway: If I could just add, on a completely different note, I must say that your first comments saddened me significantly because they are not well founded in fact. Repeating that kind of thing as an example of the problem we have in attitude that comes between us, rather than being constructive, and I personally hope that we just can get past that.
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Mr Malkowski: Just following up one last question, some situations have been brought forward where there have been requests made, for example, to doctors for written information regarding specific medication. This was in a psychiatric situation where the doctor did not provide that. Patients have needed sign language interpreters and doctors have not given them that access, so the individual could not completely understand the ramifications. Do you not need a system or a means of dealing with complaints and issues that relates to these patient concerns?
Dr Boadway: Yes.
The Chair: Dr Warrack, Dr Boadway and Ms LeBlanc, on behalf of this committee I would like to thank you for taking the time out today and giving us your presentation.
CONSUMERS' ASSOCIATION OF CANADA (ONTARIO)
The Chair: I would like to call forward our next presenters, from the Consumers' Association of Canada (Ontario). Good morning. Just a reminder, you will be given a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes and allow questions and comments from each of the caucuses. As soon as you are comfortable, could you please identify yourself for the record and then proceed.
Ms Bushnell: Good morning. I would like to introduce the members here. We are all coming from the Consumers' Association of Canada, the Ontario branch. To my right is Anne Louise Heron, the incoming president of the health committee. To my left is Karen Crozier, a member of the health committee as well as a lawyer, and Joanne Marshall, a member of the health committee. My name is Lucienne Bushnell and I am vice-president, issues and policy, of the association.
The Consumers' Association of Canada is an independent, non-profit, voluntary organization representing and informing consumers and advocating action on their behalf to improve the quality of life. It is the largest organized consumer group in Canada. The Ontario branch of CAC has over 40,000 members. Consumer advocacy, consumer representation and consumer education have been the major activities of CAC and of its local associations throughout its 44-year history.
Health and health care are priority issues with CAC (Ontario). One of our prime concerns is consumer access to high-quality health care at an affordable cost. The Consumers' Association of Canada policy statement on consumers and health care, which was passed in October 1989, is a detailed document explaining consumer rights and responsibilities concerning health matters, and it is attached to the document as appendix 1.
Our association firmly believes that all consumers have certain basic rights. The 1984 consumer rights of the International Organization of Consumer Unions were adopted by CAC (Ontario) in April 1991. These are the right to basic goods and services, the right to safety, the right to be protected, the right to have choices, the right to be heard, the right to redress, the right to be informed and the right to a healthy environment.
The Consumers' Association of Canada (Ontario) is fully committed to the rights of consumers to be informed and respected and to participate in reaching decisions with respect to their health care. We believe that the goal of Bill 109, the Consent to Treatment Act, is to clearly establish the right of each person in Ontario to make his or her own decision about health treatment.
Although the act thoroughly covers consent involving incapable persons, CAC (Ontario) believes that section 5 does not adequately cover everyday cases of medical treatment. In our view there are two forms of consent: written and implied. Written consent should be required when there is a chance of significant injury, such as in surgery. Implied consent should be adequate for all other treatments.
CAC (Ontario) feels that patients are not able to make a truly informed consent with the current common practices whereby a medical resident carries a consent form to a patient the day before surgery. After providing some information in answering questions the patient may have, he or she is asked to sign the consent.
Except in emergencies, a patient should be provided with written information reinforced with oral information well in advance of the procedure. This information should describe the proposed treatment, its risks and benefits, alternative treatment and their risks and benefits, as well as the risk of doing nothing. Written information is necessary because of the inability of patients to understand and remember oral information given to them by a physician. Dr Ley, a clinical psychologist, has determined that patients experience a memory loss of up to 50% within less than five minutes of a visit to a physician.
Written information would permit patients to carefully consider the proposed treatment and discuss it with family and friends and thereby arrive at a truly informed decision regarding their treatment. A written consent form should refer to the written information that the patient has previously received, and require that the patient sign that he or she has read and understood the information. The written consent form should indicate whether any part of the procedure would be done by other than the attending physician, and require the patient to agree to it.
Regarding written information, we believe that the Ministry of Health has some responsibility. CAC (Ontario) recommends that the ministry assist the practitioners to quickly prepare the required written information. In cases where only implied consent is required, oral information should be provided describing a proposed treatment, its risks and benefits, alternative treatments and their risks and benefits, as well as the risk of no treatment. However, written information, reinforced by oral information on the patient's medication, should be provided. This will ensure that the patient understands how to take the medication and possible adverse reactions.
It should be noted that Morris and Halpern, in a 1979 American Journal of Pharmacy, concluded that written information can improve patients' knowledge and compliance with antibiotic regimens.
Dr Lowy, in his report Prescriptions for Health, recommends "printed information on prescription drugs, along with verbal reinforcement to the patient by the pharmacist." The report of the Electro-convulsive Therapy Review Committee in 1985 recommended that in addition to discussion, printed information on ECT should be provided for informed consent.
CAC (Ontario) suggests that the Ministry of Health prepare pamphlets describing what information a patient should expect from his or her practitioner regarding proposed treatments. These pamphlets should be provided to all practitioners and they should be required to display them in prominent view in their office.
CAC (Ontario) is concerned about subsections 24(1) and (2) of this act because it removes liability from the health practitioner, based on his or her belief of what is reasonable. If section 24 is implemented as proposed, no case law on consent would be able to develop, as the courts will be unable to interpret the standard of consent required. As a result, the medical lobby will accomplish in law what it failed to do in our common law courts, namely to introduce its own professional standard to take the place of what a reasonable patient in a particular patient's circumstances would want to know to be able to fully consent to treatment.
In the case of Reibl v Hughes, 114 Dominion Law Reports (3d), page 1, Canada's leading Supreme Court of Canada decision on consent, the court found that the professional standard is not sufficient to determine consent. Instead, the court found that a professional standard is a mere factor to be considered. The patient's objective situation must be considered in light of how a reasonable patient in that particular person's situation would have decided it. Mr Reibl consented to very risky surgery when he was close to collecting a full pension. Because his doctor reasonably decided that the patient would go ahead with the surgery, he did not disclose the risks. Mr Reibl suffered grave injury and a loss of pension. The court held that Mr Reibl had the right to determine what would happen to his body, and that the decision has to be based on what Mr Reibl felt was reasonable, not on what his doctor felt was reasonable, not the professional standard or what the doctor thought was reasonable.
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CAC (Ontario) offers the following revised wording for subsections 24(1) and (2):
"24 (1) A health practitioner who administers treatment to a person with a consent sufficient for the purpose of this act is not liable for administering the treatment without consent.
"24 (2) A health practitioner who refrains from administering treatment to a person because of a refusal sufficient for the purposes of this act is not liable for failure to administer the treatment."
The Consumers' Association of Canada (Ontario) appreciates this opportunity to express its view on this important legislation.
The Chair: Thank you. Each caucus will have six minutes for questions and comments. Mr Mancini.
Mr Mancini: Thank you for your brief. I think your general principles and goals have been stated quite clearly in your presentation to the committee this morning and I have no difficulty in accepting those as standards we should achieve.
I wanted to ask if you were in the committee room when the Ontario Medical Association made their presentation, where they very clearly pointed out some of the practical difficulties in working with the legislation before us. I was wondering if you had an opinion on that.
Ms Bushnell: We were not here for the whole presentation.
Ms Crozier: I could offer a slight comment. I believe the medical profession has reasonable concerns about the kind of liability they will face. However, the standard the medical profession faces today in Ontario, as we know from the Prichard report, is not one that finds many practitioners liable for any damage they do.
Mr Mancini: I am not worried about their liability; I am worried about getting health care when I need it.
Ms Crozier: Right.
Mr Mancini: So I could not care less about someone's liability if a person's life is in danger. Appropriate delivery of service is in danger. I was not concerned about their liability. They can afford the best lawyers in Canada to defend themselves and some of them may even be former members of the Legislature. Not being a lawyer myself I do not, but I was wondering if you had had any discussion with groups like the OMA as to their practical concerns.
Ms Crozier: No, we have not had discussions. If I could just say briefly, though, the concerns of the medical profession are legitimate but they should be forced to work within the legislation. As you have just pointed out, they have access to the best legal minds in Canada.
Mr Mancini: Sure they do.
Ms Crozier: It is really up to the court with regard to all other professions and all other persons to set a standard which is deemed to be non-negligent or negligent. If doctors are allowed to insert their own standard into the act, it will just be something like the Health Disciplines Board, where the board can only consider whether or not the college was reasonable. The board can never make a determination of any fact in any case. People routinely go to that board, the board finds nothing wrong with the college's determination of the facts, the college finds no fault, and then the people settle out of court for a reasonably large settlement. You have to realize that you want your act to function as protection to the public, but I do not think it is harming the medical profession to say, "It is your duty as a doctor to find out what the law is, what the standard of consent is and your duty to be able to implement it."
Mr Mancini: Do you think it is paramount for the legislation to function practically every day?
Ms Crozier: Yes. absolutely.
Mr Mancini: Do you think it is paramount for the legislation not to jeopardize the health care of individuals who in fact need it?
Ms Crozier: Absolutely.
Mr Mancini: Given that we agree appropriate advocacy is necessary, would you not think it would be important to make sure that the theory, which is written in legislation, is able to fit hand in glove with the practicality of everyday life?
Ms Crozier: The proposal you are making does not fit hand in glove with the law in Canada -- with the most recent treatise on the law of consent to medical treatment in Canada. It really does not fit hand in glove with the situation we have here in Ontario. As you may know, in New York state the medical standard is inserted into law, but there are many other things in law in New York state that we do not have here.
Mr Mancini: What I am hearing is that the basic principles put forward in the legislation -- not just from the OMA this morning but from a lot of other people who have appeared before the committee -- yes, we must strive to achieve the goals to the best of our ability, and because we are only legislators, we cannot expect to be perfect. But at the same time we would want to do it in such a way that it does not infringe on the ability to be treated appropriately, quickly, when necessary and everything else in between. Frankly, I have no particular difficulty in accepting what it is we want to achieve. I just want to make sure that in the process we do not cause others, through no fault of their own, not to get the health care they truly need at the time, and that is why I am very concerned when I hear groups like the OMA and others that have appeared before the committee -- I only bring them up because they were on the schedule before yourself and I thought maybe you might have heard some of their comments and it would have been good for the discussion this morning.
I only bring that up to say that when we are going to proceed with such major overhauls, sometimes in our haste we may overlook some important practicalities. But I have no trouble with the principles that are involved. I want to make sure that they work. Whether the legislation is passed June 1 or October 1 or November 15 in my view is not paramount. What is paramount is what happens the day after it is passed, because to go back and to change or to try to change three or four pieces of major legislation is not an easy thing to do. I have had some experience watching governments, previous and now present, grapple with existing legislation, and it is not easy at all.
Mr Carr: Thank you very much for your presentation. I have been meeting with doctors and nurses and orderlies and so on regarding this bill, and a lot of them are concerned. You may have followed in the paper. We are in the process of closing hospital beds, laying off nurses. The Joseph Brant Memorial Hospital is in the middle of my own riding. We heard last night the situation of the person who needs the transplant, who has to go up to the Premier now to get it, and we have waiting lists.
Looking at the principles you outlined in your statement, which I think are very good, there seems to be a choice of proceeding with some of these bills -- and I am talking in terms of priority -- or taking a comprehensive review of the entire health care system so it is there when we need it, because a lot of people -- particularly, I have a senior advisory council -- are saying that as we age, the services will not be there. As you know, health care costs have gone up under all governments for the last 10 years by 10% to 12%. There is a real fear out there that our health care system that we used to think was the best in the world will not be there when we need it. If you were the Minister of Health, would you be proceeding with these bills at this time, or would you be taking a look at all these other things to end the hospital beds closing and so on? Where do you see the priority in the health care system right today?
Ms Crozier: Do you want me to answer that? As a lawyer, my feeling about the health care system in Ontario is that it has always been fractured, that health care delivery has not been associated with health care regulation and that health care liability in the common-law courts has been hived off again from health care regulation. I suppose I have a difficulty in trying to determine why it is you would have to do one or other.
It seems to me that what we are proposing is a more stringent standard for consent to protect the public from unnecessary treatment from practitioners, who you have to admit have at least an economic interest in providing treatment. Many practitioners, I am sure, would never dream of providing unnecessary treatment, but it is really the person's decision, the patient's decision, to decide whether or not he wants to get it.
I think that in order for the patient to decide he has to have some protection in law so doctors will function today the way they functioned 10 years ago and the way they have functioned ever since the Reibl and Hughes decision. There is no reason to go back into the dark ages in law in Canada and take a step backward from Reibl and Hughes. Many lawyers feel that Reibl and Hughes does not adequately protect the public as it is. It is a standard that tends not to allow many patients to come forward and sue successfully because it is too rigid for them to overcome that standard, and in your legislation you are talking about going back 20 years in law and setting up a new regime.
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In New York state, where they have the medical practitioners' standard, they also have patients' rights laws built into law. They have a comprehensive quality assurance which is non-existent in Canada, according to a comprehensive study done by the General Accounting Office of the United States on our health care system, and I believe it is a tenable study. Also in New York state, patients have access to the courts. Unlike in Ontario, where the Ontario government is now paying for malpractice insurance for patients, in New York state they are not faced with their own government's $11-million lobby in order to enforce their rights.
I would just like to make the point that in New York state there is a regime of patients' rights, there is access to the courts, and there is reasonable enforcement and quality assurance. I think in Canada we sometimes imagine that we have a wonderful system and a perfect system. In many ways we have a wonderful system, but it is not perfect. It is far from perfect. Often Canadians have not been eager to enforce their right to go to the courts. They are not individualistic in that respect, and they look to their government to provide protection.
So in answer to your question, I cannot say I would choose one. I would choose both. I think those dollars that are being wasted in the health care system now are needed elsewhere.
Mr J. Wilson: Thank you. Most of your comments I agree with 100%. I think the OMA made brief mention towards the end of its responses that it is trying to move to a patient standard and away from the physician standard. Reibl and Hughes was, I think, a step in that process, although how imperfect it is.
During your presentation I could not help but think that maybe rather than spend all this money -- because where I disagree with your comments is that we do have a shortage of money, and we are trying to move towards community-based care. We are never going to get there unless we find the money to get the community-based system up. We are clearly -- I should stop saying "we," because we are not doing it; we have not been the government for seven years. But the government is clearly closing down institutional care, and doing a great job of that, but the money does not seem to be going into community-based care.
Mr Mancini: You have lost sight of --
Mr J. Wilson: Yes, and we had the best health care system in the world for 42 years, as I recall.
As Health critic, I spend a lot of time with doctors. I ask them, "Do you learn anything about patient standards in medical school?" Simple. I was thinking maybe that is where we should start. That would be fairly inexpensive to introduce that into the curriculum, I would think.
Ms Bushnell: I would like to answer your comments. I think that what we are saying here, basically, is that the consumer has to be part of the decision-making process.
Mr J. Wilson: Agreed.
Ms Bushnell: They have a limited amount of control over saving dollars. If they go to the doctor because they have a problem and the doctor says, "Well, you know, you have to come in the hospital and we have to do this," if they are informed, they will make a decision that will respond to their need. But if the doctor says, "I have to have these tests. I cannot proceed unless we investigate all these things," in a way the consumer has a limited amount of control over the costs. So I think there are the two aspects of it. I think the cost of things has to be looked at, but also informing consumers and making them more aware.
I think more and more people are questioning the doctor. For example, they say: "Why do I have to have this test? I just had it done." They go to the cardiologist and say: "My general practitioner just sent me. He did this test. Why do you have to repeat this?" So people are starting to question. People are becoming more aware about certain medications being cheaper: generic rather than brand names. So I think they can be part of the process.
Really, what we are addressing here is that if we are going to say to people, "You are responsible for your health; you change your lifestyle and you take ownership of your health," they also have to be informed when they are making a decision about important matters such as surgery or forms of treatment. That is why we want them to be aware: "What would happen if I do nothing? Maybe things will not get any worse. Maybe that is my choice." That is why we feel people have to be informed.
The reason we want written information is because usually when people go to the doctor, they are pretty stressed out. That is pretty true for most people, and there is a limited amount they can absorb. If they get some bad news, they really have a problem retaining some of this, right? There is a certain denial here. That is what we are addressing, really.
We are saying, you do not give people something to calm them down on the morning of the operation and then come in and say, "Okay now, they were going to do this but you have to sign this," and the person has very little choice at that point. That is what we are saying. We are saying that if it is truly an informed consent, it has to be done differently, and those are not great costs, really. They can be uniform types of forms and fact sheets and this sort of thing.
Mr J. Wilson: Thank you.
Ms Carter: I was particularly interested in your reference to the Lowy report on page 4 of your brief. I understand that as many as 20% of admissions, particularly of elderly people to hospital, are due to drug side effects or to the interaction of drugs because some people take an alarmingly high number of different prescriptions that obviously have a lot of different ways of interacting. Also where people are confused, and again particularly elderly people, often if they are taken off the drugs that they are taking at that time they will revert back to being clear-minded. So the drugs are often the causes of that kind of problem.
You say that we need to help consumers to use their prescription drugs properly, and I think that is very definitely the case. We need to encourage more clearly written instructions. We need to encourage interaction with the pharmacist as well as the doctor because he is the expert on that, and we need to make it easy for people to be in compliance by having dosage made very clear and reminders where they need them and so on.
But I think we need to look at another aspect of this as well, which is the question of doctor education. After all, a lot of doctors were in medical school a long time ago and a lot of drugs are new. I believe the main avenue through which doctors learn about these drugs are detail men who come from, of course, the pharmaceutical companies and might be expected to have a somewhat biased view.
I wonder if you have any opinions on whether we need something else here, whether it may be some objective non-commercial equivalent of the detail men or more journals which maybe would not be filled with advertisements from the pharmaceutical companies and whether there are any other checks and balances on that kind of situation that you would suggest.
Ms Bushnell: Yes. This is something that we are very concerned about in the Consumers' Association. We have responded to the Lowy report and in fact we are going to be meeting several members of the Ontario College of Pharmacists in the next few weeks to specifically address that concern that oral information is not enough. It has to be backed up with written information.
This same issue that I was raising about making an informed decision is very true with the medication. Especially in the case of an elderly person in the scenario we are giving, this elderly person who goes to the doctor ends up waiting heaven knows how long in that office, is absolutely exhausted, then goes down and then waits for her or his medication and cannot wait to get home. If the pharmacist tells them something, it is really likely that they will forget a lot of it. Then, as you say, some of them will take very many and sometimes if it is an over-the-counter type of drug they figure that that is not very dangerous. But obviously they have to realize that they are drugs and they should tell the pharmacist.
I think a great deal of the answer will come via pharmacists, who are really the experts and are recognized by the profession as being the people in the better position to really deal with the consumer education, the consumer information. For that, the general public will have to be educated to see it that way. He is not just the guy who counts pills. He has knowledge and he is the person they should talk to. They should say, "I am taking this and that and that medication," and be familiar with their medication, and not say, "Well, I'm taking a little green pill," and know what it is and how to report so that they can call their pharmacist and say: "I think I'm having these symptoms. Do you think there is a reaction here, an adverse reaction?" But I think the public has to be educated to look at their pharmacist as really the expert. I do not know if anyone wants to add something.
Ms Heron: I would just add one thing, and again it is in support of what Lucienne is saying in terms of the important role the pharmacist has interacting with the consumer, and that is that often consumers are also taking drugs that are non-prescription drugs. That can have implications for how prescription drugs will act.
Another point I would like to mention is that consumers need a certain amount of information before they can ask appropriate questions. If somebody gives you a diagnosis or a condition in technical terms, you are still stumbling over the syllables they have used because you cannot even figure out where the word breaks are, and you are expected to come back with questions with regard to that condition that you cannot even pronounce.
That is an awful lot to expect of a consumer, and I think that is where this whole business comes in of slowing things down and providing information that they can sit back and look at at a quieter time. If somebody tells you that you have got a condition -- I bet if somebody took your blood pressure, it would spike a bit; then turns around and tells you you have high blood pressure -- it is the condition and it is the stress of that situation that makes it very difficult for people to understand and respond in quite a foreign environment.
Ms Marshall: Perhaps I could just mention that one project the Consumers' Association is currently involved in is trying to address this problem of consumer access to health information. Recently we have set up a consumer health information service at the Metropolitan Toronto Reference Library, and it is a joint project of the Consumers' Association, of the University of Toronto, both the faculty of library and information science and the centre for health promotion, and the Toronto Hospital. So we have advice from health professionals in setting this up, but very much it has been a consumer-driven project from the beginning.
The goal of this is really to try to centralize access to health information, to bring together a really good collection of materials that have been prepared for consumers, because in the past most health information was really prepared for doctors and nurses and pharmacists, professionals. But because of the consumer movement in the health area there is starting to be a lot more material available; the problem is to bring it together and to make it accessible to consumers. I should mention that the project is funded by the government of Ontario. It has been funded under the health strategies fund of the Premier's Council on Health, Wellbeing and Social Justice.
So we really feel that access to health information is very fragmented for consumers in the province at the present time, and we are very hopeful that this service, which also has a provincial mandate, will help. We feel the public libraries across Ontario have tremendous potential to act as a source of health information. We have had many calls already from health professionals for advice on what kinds of consumer health information materials they could provide for their patients. I think there is a lot to be done, and I am very pleased that the government has seen fit to fund this particular project.
Ms Crozier: I would like to make a brief comment as well.
The Chair: Very briefly.
Ms Crozier: The Canadian Compendium of Pharmaceuticals in Canada is a very economically priced manual which is available. Most doctors already have one. It provides an unbiased description of the pros and cons of uses of all drugs. I am sure every hospital ward in every hospital has one.
Ms Carter: Is it regularly brought up to date?
Ms Crozier: It is annual, sure.
The Chair: Ms Bushnell, Ms Heron, Ms Crozier and Ms Marshall, on behalf of the committee I would like to thank you all for coming out and giving us your presentation today. This committee stands recessed until 1:30 this afternoon.
The committee recessed at 1153.
AFTERNOON SITTING
The committee resumed at 1353.
PARKDALE COMMUNITY HEALTH CENTRE
The Chair: I call this committee back to order. I call forward our first presenter, from the Parkdale Community Health Centre. While our presenters are coming forward, I would like to remind the committee members that we do start at 1:30, and 9:30 in the morning, just so that they could get back here a little sooner in fairness to our presenters, who have been waiting.
Good afternoon. Just a reminder that you will be allowed a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes, to allow for questions and comments from each of the caucuses. As soon as you are comfortable, could you please identify yourself for the record and then proceed.
Ms Diamond: My name is Frumie Diamond. I am the community health educator at Parkdale Community Health Centre. My brief is very brief, so I will not take all the time and help you guys get back on schedule here.
I am presenting this brief on Bill 109, An Act respecting Consent to Treatment, on behalf of Parkdale Community Health Centre. We want to voice our concern about the inclusion of section 8 in Bill 109, which will limit access to confidential health care by young people under the age of 16. Subsection 8(2) clearly states that "A person who is less than 16 years of age is presumed to be incapable with respect to the treatment, but the presumption may be rebutted." This section, if implemented, will have serious consequences for the wellbeing of teens under the age of 16.
It is likely that physicians in practice will not want to face the burden of rebutting the assumption of incapability of those teens under sixteen. Putting the onus of rebuttal on the physician leaves the physician open to parental and possible court challenge. The result will be that physicians will simply refuse to provide confidential care to those under 16.
One also has to wonder how turning 16 makes someone automatically capable of making responsible decisions. The maturational process varies for different individuals along a developmental continuum. As the report of the Metro Youth Task Force, Looking to the Future, states:
"The fact that today's 12- and 13-year olds are often as sophisticated as the 16-year olds of previous generations makes the problem of age-limited services even more acute.... The task force prefers to see youth as a continuum, a period of transition between dependence on parents or guardians and eventual adult responsibility."
Common law in Canada supports the above interpretation. Precedents in Canadian common law have taken the view that minors can give consent for themselves if they understand the nature and purpose of the treatment and the consent meets the criteria for informed consent set out by the Supreme Court of Canada.
Confidential care is essential for young people, including those under the age of 16. Young people need access to information and treatment provided by health professionals without parental knowledge, particularly in the areas of birth control, sexually transmitted diseases and sexuality. These are areas where many teens feel uncomfortable about approaching their parents. Many parents also feel uncomfortable talking about such issues with their children. But even more important, many parents cannot accept that their child, particularly a daughter, may be sexually active and in need of medical care in order to acquire contraception. However, the reality is that many young teens are sexually active.
The Canada Youth and Aids Study, produced for Health and Welfare Canada, found that a significant percentage of adolescents under the age of 16 had engaged in sexual intercourse: 26% of grade 9 students, and that breaks down to 31% of males and 21% of females, and 12% of males and 8% of females in grade 7 had sexual intercourse at least once.
The teen pregnancy rate in Ontario has been decreasing. This decrease has been due to several factors, including expanded sexuality education in the schools, the introduction of family planning clinics in health units and physicians providing care to teenagers without age restrictions. It is important to maintain this downward trend for teen pregnancies, as pregnant teens have a significantly increased risk of a poor perinatal outcome. As a preventive measure, teens must be able to access confidential contraceptive and abortion services. Denying access by legislating age restrictions will not stop the sexual behaviour, but drive it further underground and increase the risks of young women becoming pregnant.
Adolescents also need access to confidential care for treatment of sexually transmitted diseases. The increase in rates for chlamydial and gonorrhoeal infection among young teens is truly alarming. Canada Diseases Weekly Report states that teens, especially females between the ages of 15 and 19, have the highest rate of chlamydial infection, and that these rates are rising. In 1990 Ontario reported over 400 cases of chlamydia infection in females under the age of 16. While trends in gonorrhoeal infection are generally dropping, the rates for girls 15 to 19 has not dropped significantly and remains at unacceptably high levels.
Both chlamydial and gonorrhoeal infections, when not treated, cause serious, long-term and often irreversible damage to the reproductive tract. Pelvic inflammatory disease, chronic pelvic pain, infertility and ectopic pregnancy are the results of these untreated infections in women. With restricted access to medical treatment due to age constraints, the epidemic of sexually transmitted diseases will only worsen.
Our recommendation: We recommend that section 8 be deleted from Bill 109. We support the continuation of the present common law arrangement whereby minors are viewed as capable of giving consent for themselves if they understand the nature and purpose of the treatment.
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Mr Poirier: Thank you for coming forward with that. Rest assured, you are far from being the only person, community centre or medical authority that has had this identical concern. These statistics that you had have been touched on before but maybe were not as detailed as this. Obviously the government will have to scrap that section to make sure young people under 16 can have access and all confidentiality of medical health services. I cannot imagine that your wish cannot come true; it is too logical.
Ms Diamond: I hope so.
Mr Poirier: Of course, the government is invited to confirm my wish immediately, if it wants, by bringing the amendments forward. We can vote on it unanimously right now so that Ms Diamond can leave this presentation and know for a fact that is what you will do because you are such logical animals.
Mr Winninger: I object to the term "animals."
Mr Poirier: I thought it was going to be "logical" that you objected to.
Mr Carr: Thank you very much for your presentation. One of the motions we put forward is identical to yours, and presumably the government will be listening.
I just want to comment on one thing. Two nights ago on Global they talked about some success with regard to some of the teen pregnancies: The percentage is down. Has that been your indication, having worked in the field over the last little while?
Ms Diamond: Yes, absolutely. The trend is decreasing, but sexual activity is not; in fact, sexual activity is increasing.
Mr Carr: Obviously what is happening is that we are doing a better job with some of the methods of contraception and so on. If this particular legislation comes in and there is no change, what will it do? I know in your presentation you talked a little bit about what it will do, but specifically for you, how do you see it rising? Any idea of exactly what will transpire?
Ms Diamond: I now work at Parkdale Community Health Centre, but for the last five or six years I have worked in the birth control field at the Bay Centre for Birth Control, which is one the largest centres in Ontario, I would say, or even in Canada. What we noted is that some of the doctors, even with the common law, are reluctant to give care to teenagers under the age of 16. Teenagers will specifically come to a clinic because they are afraid to go to their family physicians because their family physicians will tell their parents. Now family physicians are not supposed to do that, because it is supposed to be confidential, but I have known cases where that has happened.
The other thing that happens is that when some teens go to their parents, they are in physical danger. Also, their parents have thrown them out of the house, so you will have an increase in homeless youth. We also know that when these women get kicked out, this just contributes to single moms being in poverty. They get on the welfare rolls.
Mr Carr: So even though the present system is not perfect, because some doctors are still going to the parents, they have an option through the clinics. Just so I know what you are saying then, it is that if this goes through, it will put the barrier up even further. It is not perfect now, but as you suggest, we are actually going to make it worse if this goes through unamended.
Ms Diamond: Absolutely. If this goes through, then it should be very clear to physicians -- it is not just physicians but also the other health care givers who provide these kinds of services -- that it is okay to treat these young people. Hopefully that will promote teens being able to have increased access, because that is what we really need. We were talking about the teen pregnancy rate, but in fact the STD rates are really at quite epidemic proportions, and we really need to be addressing that issue.
Mr Carr: Okay, thank you. Good luck.
Mr Winninger: Unfortunately the parliamentary assistant for Health is called away at this point, but I would like to indicate that he said as recently as yesterday that his minister is actively looking at this section. A number of groups have come forward, including the district health officers, to share your concerns, particularly with regard to education and treatment of young women, and I do not think your concerns will go unheeded.
Ms Diamond: Great.
The Chair: Ms Diamond, on behalf on this committee, I would like to thank you for such a concise brief that got us partly back on schedule, and on behalf of the committee, I would like to thank you for coming today and giving us your presentation.
Ms Diamond: Great. Thank you very much, and I hope I just added another impetus to change that specific subsection.
Mr Poirier: You took it over the top.
Ms Diamond: Great.
ONTARIO ASSOCIATION OF NON-PROFIT HOMES AND SERVICES FOR SENIORS
The Chair: I would like to call forward our next presenter, the Ontario Association of Non-Profit Homes and Services for Seniors. Good afternoon. Just a reminder, you will be given a half-hour for your presentation. If you could keep your remarks to about 15 minutes, the committee would appreciate it so they would have time for questions and comments. As soon as you are comfortable, please identify yourself for the record and then proceed.
Mr O'Krafka: My name is Paul O'Krafka, and I am the president of OANHSS, which is the Ontario Association of Non-Profit Homes and Services for Seniors. I am also executive director of St Joseph's Villa in Dundas, Ontario. With me today is Michael Klejman, who is our executive director at OANHSS. Our comments as well will be fairly brief, and hopefully we will get you right back on schedule before we are done.
The Ontario Association of Non-Profit Homes and Services for Seniors is a non-profit, charitable corporation, and we have been in existence since 1919. Our mission and goal is to support and advance the interests of our members, thereby enhancing their ability to meet the needs of individuals and communities they serve.
The association represents over 200 organizations, providing services to in excess of 140,000 seniors, or over 10% of Ontario's elderly population. We provide these services through homes for the aged, non-profit nursing homes, seniors' housing and support services agencies. OANHSS offers our members educational and information services. In addition, group services such as purchasing, insurance, employee benefits and consulting are provided. Members of the association operate nearly 30,000 long-term care beds, over 10,000 seniors' apartment units and offer a wide variety of day and outreach programs such as respite care, Meals on Wheels, seniors' day centres, transportation, emergency response services and many others.
Membership of the association is comprised of municipal and charitable corporations which operate a variety of programs and services for seniors. Origins of our member non-profit homes go back to mid-1830s and reveal a proud history of innovative and responsive programs which are reflective of the needs of the diverse communities in Ontario.
While your committee is looking at six pieces of legislation, our comments and recommendations will be focused on three of those pieces: Bill 74 on advocacy, Bill 109, consent to treatment, and Bill 108, substitute decisions.
Starting with Bill 74 on advocacy, this bill would establish a universal advocacy system with extensive powers of intrusion. It appears to be based on the premise that currently there is little or no protection for the rights of vulnerable persons and that no one, be it family, care givers or professionals, is unbiased enough to be entrusted with decisions affecting vulnerable persons.
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There are several factors we feel need to be considered before an advocacy model is adopted:
1. Vulnerable persons are not a homogenous group. They present an incredible array of health, age, culture and environmentally related differences which today challenge our health, social service and legal systems to the utmost.
2. In the case of elderly persons, in many instances there are families and relatives who are strongly committed to their support and care. The primary obstacles these individuals face are lack of finances and a lack of understanding of how the legal and health care systems work.
3. Effective advocacy will require an extensive knowledge base of the various causes of vulnerability. There are different medical and social causes that, when coupled with unstable and difficult-to-ascertain ability to make decisions and comprehend the issues, require ongoing contact and extensive knowledge to make accurate assessments.
4. It is very unlikely that advocates can ever achieve the same degree of understanding of vulnerable individuals as family care givers or professionals who are in constant contact with these persons.
5. The proposed advocacy model is a complicated and potentially costly system. Based on the experience from other initiatives and considering the current economic climate, we may find ourselves in a predicament of an inadequately funded program that by its very nature complicates and interferes with care and support activities in various settings.
6. This bill appears to allow and encourage the intrusion of an outside advocate, quite likely against the wishes of the next of kin, and probably without a clear understanding by the individual concerned.
After considering these points, we would like to put forward the following recommendations related to Bill 74:
1. The advocacy legislation be amended to introduce the advocacy program in two stages. In the first stage, an enlarged commission with a broader representation, to include care givers and professionals, be created to consider the following points: enhancement of existing advocacy programs; evolution of current volunteer and governance structures in care giving organizations to incorporate the advocacy functions into those organizations; an opportunity to determine the costs of possible advocacy models; the introduction of pilot projects in several communities to test out several approaches to advocacy; incorporation of safeguards into any advocacy system so that the vulnerable person's needs are served, rather than the system simply justifying its own existence and becoming the goal; and, lastly, that we incorporate into Bill 74, and amend any relevant existing legislation, to establish a requirement to report any observed or suspected abuse of vulnerable adults. This obligation should apply to all professions and to those in positions of authority over programs and agencies that deal with vulnerable persons.
2. Only when these tasks are concluded and a comprehensive report completed should the Legislature consider the establishment of an advocacy system which is cost-effective, non-bureaucratic and responsive to the needs of vulnerable persons.
I now would like to ask Mr Klejman to comment on the other two pieces of legislation.
Mr Klejman: Bill 109 clearly sets out the process and authority for securing consent for treatment or care to incompetent persons. It also establishes the mechanism for giving informed consent on an incapable person's behalf. The role of the next of kin, the professional, and the public guardian and trustee are established or defined. In addition, this bill imposes the advocacy functions on the process of securing consent.
For some of the same reasons stated previously in our section dealing with Bill 74, we are concerned with the impact the advocate's intervention and the Consent and Capacity Review Board's rendering of decisions will have on persons requiring care or treatment. The potential for delays, mistakes and miscommunication is amplified with each additional layer or step in the process of rendering a decision. We therefore recommend that:
1. Bill 109 be amended to delete the function of the advocate from the process of securing informed consent to treatment.
2. Provisions be made to enable a person seeking treatment or a person who has the power of attorney under the proposed bill to obtain a review of the professional opinion via a review board.
3. Subsection 32(1) of Bill 109, referring to the review board, should be amended to empower it to act more expeditiously in giving second opinions on proposed treatments if requested by either a person seeking treatment or a person representing an incapacitated person.
Looking at Bill 108, the Substitute Decisions Act, a comprehensive and more flexible system for the assignment of the power of attorney, determination of preferred types of medical treatment in advance and the functioning of the public guardian and trustee are being proposed under this bill.
We endorse this legislation with one reservation. The provision for involvement of and authority by advocates would have the same impact on efforts to authorize substitute decisions on behalf of persons as were outlined in our comments regarding consent to treatment. The involvement by advocates will add another procedural layer, thus delaying, complicating and confusing both persons seeking decisions and others affected. We therefore recommend that:
1. Bill 108 be enacted with the deletion of of references to advocates and their role.
2. An amendment be added that any person who is involved in the process of application for guardianship must report any suspected or observed cases of abuse.
In brief, concluding remarks we urge the Legislature to move ahead with this far-reaching legislation to define the substitute decision-making process and the process of obtaining consent to treatment. We also ask you to consider the importance of reaching an equilibrium between protecting individual rights and freedoms and the protection of the similar rights of others. It is at times easy to swing the pendulum of justice too far the other way in an attempt to right past mistakes.
We concur with the need to address societal issues related to disempowerment which may affect, among others, vulnerable, disabled or elderly persons. The difficulty is in trying to use these three bills to influence attitudes, change perceptions and redress economically motivated wrongs occurring in our society. We believe that it is a wrong approach and urge the committee to review all three bills with a view to simplifying the procedures and steps involved in giving consent, appointment of a third party or ensuring that rights and wellbeing are not infringed upon. We also urge the committee to acknowledge that not everything and everyone in our society is mean-spirited and that there are individuals, families, care givers and agencies which truly care and can be relied upon to seek the best for those who depend upon them. Thank you.
Mrs Sullivan: I am very interested in your recommendations with respect to the implementation of the Advocacy Commission, but I am particularly interested in the recommendation suggesting that there should be additional requirements on people who suspect abuse, whether it is of the frail elderly or other vulnerable people. I wonder if you would expand on that. We have heard a lot of testimony before this committee indicating that employees of institutions or agencies may be unwilling to report abuse as they see it because of fear of reprisal from their employer. I wonder if you would expand on that and discuss the nature of the kinds of additional reporting requirements you would see as valuable.
Mr Klejman: I think the principle or the concept is based on the similar approach taken in looking at child protection. It certainly, in our view, makes sense to provide employees with that kind of legal requirement to free them of any perceived or real fears they may have in their own settings, wherever they may be working, whether they are facilities or community settings.
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Mrs Sullivan: As a matter of fact, I was just flipping through the Child and Family Services Act to find out precisely what the wording was to see if that was the kind of approach you were thinking of in your circumstances. In that act the child protection workers have a very different right of entry, through warrant. Would you think that would also be an appropriate parallel change?
Mr Klejman: It may be. To be honest with you, we have not developed an amendment that addresses all the issues to put forward how such legislation would make it possible for the reporting process to occur. In discussion considering this point, we thought there were some structures in the community now that could assume that responsibility.
There are agencies like adult protective service worker functions, for example, that sometimes assume that role without having the legal authority to do so. In services for the elderly, certainly it is quite conceivable that within the governing structure of boards the responsibility could be vested in the voluntary component of administration rather than looking at it in the administrative structures of agencies.
We also know that the relationship between funded organizations, transfer payment agencies and government ministries is one where there is a fairly strong reporting relationship and accountability in adherence to requirements, whether they be vested in legislation or policies. One of our views would be that there could be the kind of mechanism established within ministries that may hold the responsibility.
Mr Carr: I am interested in (d) on page 5 of your brief, the introduction of pilot projects in several communities to test out some of the approaches. How would you see that working? Specifically, how would you like to see it set up?
Mr Klejman: I think especially with the wealth of information that probably has been presented to this committee -- and time permitting, we probably would have liked to sit through at least some of the presentation -- a lot of ideas have probably surfaced in terms of what is happening in different sectors, in health and social services, for example, experiences that some organizations may have gone through trying to deal with problems strictly on their own. I think sometimes what we experience is that our innovative ideas do not get enough support and encouragement, in terms of government funding structures or rigid program mechanisms, to be tested in a more extensive way.
We would recommend, for example, looking at the adult protective service worker model and how it would work in the elderly services -- to my knowledge, it does not exist right now; I may be wrong, but I am not aware of that system applying in a more comprehensive way to services for the elderly -- taking even some of those examples and trying them in different sectors; looking at the child protection function and maybe looking at some agencies that could assume that function today, but doing it on a local basis and monitoring it a little more extensively over a period of a year or two to get a sense of whether the concept of an independent advocate is the only way to ensure that there is a strong sense of advocacy role being fulfilled in a community.
Mr Carr: Is that what you mean by the enhancement of the existing advocacy programs? Is it along the lines of funding that your concern is?
Mr Klejman: Yes. I think that when we look at some of the programs our members are providing, the areas that are often the first to fall under the axe and the last to get any kind of support in terms of ongoing funding are programs that aim to establish more of an interpersonal relationship with clients in facilities or with others who are using those facilities on a day basis.
It may be easier to obtain funding for direct nursing staff and dietary staff. When we talk about social workers or other staff with a social work focus, in current funding these are the areas that are almost the last to be considered and rarely funded.
Mr Carr: Looking at (c), I guess the challenge for government is to get the best possible use of some of the dollars. We all know some of the constraints the health care system is under. It is in the paper almost daily. By doing that in point (c) that you put there, "to determine costs of possible advocacy models," I take it what you are saying is that if we do not do it properly and do not look at some of these other existing programs and the funding, we may very well spend more money than we possibly could. That is basically what you are saying.
Mr Klejman: The greatest fear is that a comprehensive system as proposed is introduced and not adequately funded. What we have then are obstacles in a number of areas. But due to limitations right now, that system, the advocacy system, is not able to fulfil its role, either in terms of the delays, time that people have to wait or the legal system may have to wait, or care providers or professionals in health care have to wait, simply because there is not the capacity. We have no idea what we are getting into, to be honest.
Mr Carr: A last question, on point (e), talking about some of the safeguards. The Ontario Medical Association was saying this morning that the health reg bills put in some checks and balances. The same principle is not here. Is there anything specific you could see, any of the safeguards you felt could be put in?
Mr Klejman: It is difficult to look at trying to apply ideas or suggestions to a new structure, because it is not very clear how the advocates would be established. What would be the premise for creating the agencies? Would they be covering county structures or would they be focused on certain population numbers?
Conceivably the kind of accountability that exists in the non-profit sector, where there is in effect a local board, whether it is an elected board in a municipal home or a board of volunteers established to monitor the operation of a charitable organization -- that to me, I think, would be one of the most direct accountability structures, to have a volunteer board, not appointed by a party that may be seen as subjective, to oversee the operation of advocates, whether they are volunteers or employees of the agency or organization.
Ms Carter: I think you are showing the same kind of difference of emphasis, if you like, that we have seen in a lot of groups that come from the care giver or the medical side. Obviously, we know that care givers, family people and professionals do provide care to vast numbers of vulnerable adults and do so very well and very effectively, but things do go wrong and I think we have a much greater sense of urgency, if you like, about that.
For example, I saw some figures this morning showing that where people are abused, it is almost always by the very people who are close to them. So we do really have a problem. Just to underline that, while we agree with the factors to be considered that you have on page 7, we really do not agree with your conclusions.
I want to read a quote from the coroner's jury at the inquest on Joseph Kendall in November 1990. They said:
"We, the jury, after sitting through 60 days of testimony, and going through tremendous amounts of evidence, are shocked and appalled at the way the vulnerable adult is being forced to live in this province. These people are Canadian citizens, and some are veterans who have fought for this country. These citizens have had their rights and dignity stripped from them, and in some cases, put into society to live in conditions that are degrading at best. These conditions put them into the position to receive all types of physical and mental abuse.
"There are a number of reports already, such as the Graham report, the Manson report, the O'Sullivan report, as well as numerous recommendations from other inquests. It is with this in mind, that we, the jury, strongly implore you to implement the following recommendations that could help to alleviate this problem."
I put it to you that there is a problem and that we have to have the interests of the vulnerable individual at the centre of the picture when we think how best to alleviate it.
Mr O'Krafka: I guess our only challenge would be to look at the strengths in the existing system as well, because I am sure there are many examples of the types of things you are citing there. But there are also hundreds of thousands of examples in our member facilities, particularly in the non-profit sector which we represent, where because of volunteer governance, volunteer boards and committed staff, people are getting excellent care and services and being well advocated on their behalf.
Our key point is that some recognition needs to be given to those strengths in the system and building on those strengths, while at the same time putting protection in for what may be a significantly lesser number of vulnerable adults.
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Ms Carter: It is understood, obviously, that in most cases there is nothing wrong, but we do need a mechanism that is aimed at the people themselves and at making sure it is their wishes and not somebody else's wishes being imposed upon them that are taken into account.
Mr Klejman: The dilemma we have struggled with in this report is how to translate those two concerns into a piece of legislation that does not automatically label everyone who is seen as care giver or a manager or a staff person working in a facility as someone to be distrusted or subject to suspicion that he or she is not committed to giving the best possible care or support to a vulnerable person.
Ms Carter: Well, we do not see it that way.
Mr Wessenger: I am interested in your suggestion with respect to Bill 109. As you know, the role of the advocate in Bill 109 is to provide rights advice to the patient with respect to the incapacity question and the right to challenge that. Who would you have provide that rights advice to the patient?
Mr Klejman: The concept we are putting forward -- there is a provision in the bill to establish a review board, and the two-step process will be that, one, in the process of seeking treatment, when the professional or whoever is to provide the treatment, there is a process of exchange of information and informing what the consequences of treatment will be and what alternatives there are. I think that could be the stage at which the opportunity to appeal directly to the board rather than go through a two-step process of the advocate --
Mr Wessenger: So what you would recommend is that the health practitioner would give that rights advice.
Mr Klejman: That is right, yes.
Mr Wessenger: If after that rights advice the patient were to indicate that he or she wanted to object, would you see a role for an advocate visit in that instance? Obviously that person would have to be enabled in some way to object, so how would you suggest that be dealt with?
Mr Klejman: If the system as we conceive of it is not working, then I think at that point it would be worth considering. Again, we see the legislation as coming in tandem, so that the --
Mr Wessenger: Would you see perhaps the role of the advocate coming in after the rights advice by the health practitioner?
Mr Klejman: Not at this point, no. We would want to see that it is not working, this system.
Mr Wessenger: Obviously the person would have to be put in touch with either a lawyer or some person to represent his or her rights. You would agree with that?
Mr Klejman: That is right.
The Chair: Mr O'Krafka and Mr Klejman, on behalf of this committee I would like to thank you for taking the time out today and coming and giving us your presentation.
CAMPAIGN LIFE COALITION ONTARIO
The Chair: I would like to call forward our next presenters, from the Campaign Life Coalition Ontario. Good afternoon. I would just remind you that you will be allowed a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you are comfortable, please identify yourself for the record and then proceed.
Mrs Douglas: Thank you and good afternoon. My name is Mary Ellen Douglas. I am the Ontario president of Campaign Life Coalition. With me today are Mrs Rhonda Wood, the Ontario coordinator for Campaign Life, Mrs Sabina McLuhan from the Toronto office, and Mrs Clare Dodds from the Toronto office. We very much appreciate the opportunity to address you this afternoon.
Campaign Life Coalition Ontario is a provincial pro-life organization working in the political arena on the life issues of euthanasia, infanticide and abortion. We are pleased to be able to present our concerns on the proposed legislation. We oppose these bills in their entirety. From our perspective, no amendments would make these bills acceptable. We base this categorical rejection of the proposed legislation on the following observations:
First, the role of the family: A major objection to the proposed legislation stems from its tendency to diminish the rights and responsibility of family members when it comes to ethical decision-making on behalf of vulnerable persons. The presumption that a person cannot trust his or her family or his or her doctor underlies Bill 108, 109 and 110. It is particularly evident in Bill 109, subsection 16(1), which defines who may consent or refuse treatment on behalf of an incapable person.
Of first authority comes a court-appointed guardian for personal care or an attorney named earlier by the now incapable person, followed by a representative appointed by the Consent and Capacity Review Board. The authority of relatives to make decisions on behalf of incapacitated family members comes after these three levels of authority. With the exception of the attorney appointed by the individual, these other categories of persons authorized to make often crucial decisions would most likely be unknown to the individual. Under Bill 109, a health care professional is directed first to seek out a stranger to make decisions, in preference to a family member. If a relative objects to such a third-party decision-making, the legislation states that the authority of the stranger is to prevail over that of the relative.
If Bill 109 should become law, it will be prudent for all individuals to ensure that they have a carefully worded advance directive to guard against the possibility that their later health care decisions will be removed from their relatives. Such advance directives, which include powers of attorney and living wills, have serious shortcomings, which will be addressed later in this brief. In addition, while it might be all very well and good for the well-informed individual to safeguard his future health decisions in this way, this is a somewhat élitist concept which will see the majority faced with battling the bureaucracy.
It is our view that the family should always be consulted first in seeking authorization to treat a vulnerable person. A relative who knows the individual should be presumed to be able to act in that person's best interests unless there is a solid reason to suspect that the life of the patient is in jeopardy. There should of course always be safeguards should familial relationships deteriorate, as they sometimes do, or when a patient is without family. However, the emphasis should be placed on the responsibility of relatives to make appropriate decisions, with legislation only as a safety net if the family integrity breaks down. In our view, Bills 108, 109 and 110 do not satisfy the secondary requirement for an appropriate safety net.
The role of government is to support the family unit, providing legislation and services to strengthen it where necessary. This proposed legislation will only serve to weaken the family structure. It sends a message to the public that families cannot protect their own; only government can.
Second, the patient-doctor relationship: The existing legal and ethical parameters of the doctor-patient relationship in Ontario have generally attempted to meet the health care needs of the public to date. While there may be some specific problems which some future legislation might address, passing these bills would compare with carrying out major surgery to repair a hangnail.
There is much public confidence in medical professionals and in the system within which they provide treatment. An underlying premise of this legislation is that doctors, unless provided with freedom from legal liability, routinely overtreat their patients, and this premise is false.
Doctors and other health care providers have as a major goal the desire to cure their patients. However, not all patients can be cured. When cure is no longer possible, the role of the medical professional is to offer medical treatment and nursing care which will alleviate the physical suffering of the patients, as well as to address the emotional and spiritual needs of the patients and their families. This second role of the medical profession is becoming better understood both within the profession and within our society as a whole.
Third, the right to refuse treatment and informed consent: Patients already have the right to refuse medical treatment. This principle of personal autonomy has a long tradition in the common law. Therefore, as the Law Reform Commission of Canada pointed out in 1979:
"The very fact that a law is deemed necessary to assure patients' rights implies, and therefore tends to reinforce, an erroneous presupposition about the locus of decision-making in the physician-patient relationship."
The bureaucratic mechanisms introduced by this proposed legislation will literally force people into trying to predict the future to ensure adequate care.
We must be realistic. How many of us can make solid, well-informed decisions about what we might need, let alone want, among many possible options, with an unknown medical condition, under unknown circumstances, at an unspecified age and location, with no documented health history leading to this particular event and no opportunity for prognosis? Are average citizens expected to have a sound grasp of potential medical treatments available in any and every situation? How many would think to specify that they should be fed to prevent death from starvation?
The individual's right to consent or refuse medical treatment is grounded in the notion of informed consent. Such consent to medical procedures requires complete, accurate and up-to-date information on a specific medical condition, as well as a discussion of alternatives before decision-making. The bureaucratic business of these bills, with their governmental invasion into matters best handled by the individual, his or her relatives and compassionate health professionals, will make caring for vulnerable persons more difficult.
Mrs Wood will continue from here.
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Mrs Wood: Fourth, a formula for cost containment: These bills are thinly disguised mechanisms to reduce patient services and to cut health care budgets. Campaign Life Coalition Ontario strongly objects to such cost-containment measures being practised on some of the most vulnerable members of our society.
The "Big Brother knows best" ideology implicit in this legislation is further underscored by close study of Bill 108, section 46, the definition of "incapacity regarding personal care," and sections 52 to 62 concerning court-appointed guardians of the person. These sections put in place a court procedure that could be used to reduce health care or even lead to euthanasia for our most vulnerable and defenceless elderly, the poor and indigent.
Abuse of elderly patients by health care providers, hospitals and geriatric institutions may be an occasional problem under our present system, but it is the demonstrated decency and responsibility of health care professionals, together with existing legal protection for the patient, that makes any systemic practice of euthanasia unlikely. This legislation, however, which removes ethical decision-making from the family and health care professionals and places it into the hands of a court-appointed guardian, would put in place a system that would allow for euthanizing our elderly poor as a cost-containment mechanism.
While this may seem an overly Orwellian dramatization, the possibility of euthanizing the poor and vulnerable elderly is a real concern to the pro-life movement. It is a fact that the ever-increasing percentage of our population over the age of 65, a percentage to reach 28.8% by the year 2036, is placing an increasing burden to provide funds for health care and pensions on a decreasing percentage of our workers. Tax dollars, as this government well knows, are not increasing fast enough to cover the increasing social needs of Ontario's residents. We reject, however, that any saving of health care costs should be obtained through removing protection for the most vulnerable in our society.
These proposed bills would place a vast bureaucracy between doctor and patient. This bureaucracy will have an enormous power over people's lives, and yet the qualifications and duties of the assessors and advocates called for under the legislation are either poorly defined in the bills or not defined at all. It is unacceptable that civil servant positions of such responsibility are proposed without public scrutiny of their job descriptions.
Of further concern is the cost of this veritable army of civil servants. The government has already estimated it will cost between $20 million and $30 million a year to administer this system. Will the health care system be put under a further strain to pay for it?
Fifth, the right to nutrition and hydration: "Treatment" is defined so broadly in Bill 109 that it could be interpreted to include nutrition and hydration. This could lead a guardian or attorney for personal care to request that food and water be withdrawn, in effect permitting the patient to die from starvation. Food and water, even when supplied through assisted feeding, is not medical treatment; it is ordinary medical care. There may come a time during the dying process when nutrition and hydration becomes burdensome for the patient because the body is no longer capable of processing food and liquids. However, while food and water is still of benefit to the patient, it should be clearly understood that its withdrawal is unethical and prohibited.
Proponents of euthanasia consider the withdrawal of food and water to be the first step towards active euthanasia. Helga Kuhse, director of the Center for Human Bioethics at Monash University in Melbourne, has stated, "If we can get people to accept the removal of all treatment and care, especially the removal of food and fluids, they will see what a painful way this is to die, and then, in the patient's best interest, they will accept the lethal injection."
Sixth, living wills: Although the proposed bills do not provide directly for living wills, the practical effect of Bill 108 is to introduce living wills to Ontario through legislation of powers of attorney for personal care. Subsection 47(5) will allow the attorney to give or refuse consent to "specified kinds of treatment under specified circumstances."
Living wills are ostensibly designed to give effect to rational, informed choices of competent adults, should they become incompetent at a later date. The underlying premise of a living will is that the doctors, unless threatened with legal action, routinely overtreat their patients. This can destroy the doctor-patient relationship and erode the trust that has been the traditional cornerstone of ethical patient care. It implies that in the absence of such a document, one can expect to be treated excessively. It implies as well that the patient has no right to refuse treatment or to refuse the advice of a physician. The living will suggests that these rights must be acquired by the issuance of a legal document.
The living will undermines the professional judgement of the physician. In dealing with an incompetent patient, physicians determine the course of treatment by taking into consideration many factors such as the apparent wishes of the patient, the wishes of the patient's family, the patient's condition, and the nature and availability of treatments. This weighing of factors should take place as an integral part of good medicine, the goal of which is to determine the best interests of the patient and then to act accordingly. Living wills compel a doctor to act in a certain manner, dictated by a written document that could not possibly encompass all scenarios.
Of great concern to Campaign Life Coalition Ontario is the origin of the living will and the long-term goals of its proponents. The original name for the Society for the Right to Die was the Euthanasia Society of America, founded in the 1930s to promote euthanasia, whether voluntary or involuntary. At a meeting of the Euthanasia Society, Luis Kutner, a Chicago attorney, introduced a new document designed to bring about a change in the "climate of society" before euthanasia would be acceptable to the public. This document was called the living will. Three years ago, at a worldwide meeting of euthanasia organizations, the living will was touted as the "first short step" to death on demand.
Derek Humphry, co-founder of the US Hemlock Society and president of the World Federation of Right to Die Societies, advocates the use of living wills to achieve euthanasia. "We have to go stage by stage with the living will, with the power of attorney...we have to go stage by stage."
In Canada, Dying with Dignity, founded in June 1980, has concentrated on promoting living wills and has steadily lobbied the medical profession to support this document.
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In November 1991, Professor Eike-Henner Kluge, a medical ethicist from the University of Victoria, appeared before the federal legislative committee H to testify on Bill C-203, An Act to amend the Criminal Code re Terminally Ill Persons. He proposed that this bill be amended to allow incompetent persons to appoint proxy decison-makers. Bill C-203, since defeated, would have allowed for active euthanasia. We are deeply concerned that living wills or powers of attorney could be so worded as to permit a third party to authorize the direct medical killing of vulnerable persons.
Professor Kluge's proposed amendments to Bill C-203 were fully support by the British Columbia-based Right to Die Society of Canada. This group, recently founded by writer John Hofsess, has publicly stated that its goal is to legalize active euthanasia in Canada.
Euthanasia organizations throughout the world have endorsed and worked for living will and power of attorney legislation for many years now. Such documents are the first step in softening up social attitudes towards killing the vulnerable, whether young or elderly. The pro-life movement in Canada is opposed to this step.
Campaign Life Coalition Ontario recommends that Bills 108, 109 and 110 be defeated. We believe these bills would be dangerous for patients if enacted as drafted and cannot be amended satisfactorily. We offer the following observations:
Physicians, along with patients, family members, health professionals and/or clergy make decisions every day to not initiate or to discontinue unnecessary and heroic measures. Patients have the right to consult with or choose another doctor if they believe they are being overtreated or undertreated. Individuals already have the right to give physicians and families their instructions in case of incompetency and/or terminal illness.
There is no law, medical group, church or anti-euthanasia organization that insists we use unnecessary, useless, heroic or unduly burdensome measures to keep a dying person alive. A chronically ill, disabled or dying person, like any human individual, has the right to compassionate, humane and commonsense treatment and care allowing him or her to live with dignity until the moment of natural death.
Mrs Sullivan: Your brief is one that four minutes of questioning from each caucus really will not do justice to because, as several other presenters have done, I think you have come before the committee raising fundamental ethical and moral questions.
My sense of these bills is not that they would permit euthanasia. I understand you are saying they may well be the first step to later legislation and that you see that euthanasia could be a result of the implementation of these bills. I will certainly review the bills in relationship to the concerns you have raised, and I am sure other members will, but that is not my reading of them.
Having seen that the Ontario Medical Association is now undertaking a dialogue, which I understand will occur over the next year, in relationship to the scope of practice of physicians and their ethical and professional requirements, I wonder whether you have spoken with the Ontario Medical Association about presenting your views before it on these questions and whether indeed you have addressed it with your concerns about these bills in relationship to the euthanasia issues.
Mrs Douglas: I would like to ask Sabina.
Mrs McLuhan: No, we have not talked to the OMA. Usually we do not find our position is greeted very cheerfully by the OMA, and on this we have been working among our own network of pro-life groups. I would suggest, though, that I think you can read euthanasia into these bills simply from the point of view. If you have a court-appointed guardian of the person who believes, from an ethical viewpoint, that a disabled or vulnerable person is better off dead, then he or she as guardian could very well endorse some kind of action which would indeed end the life of that person.
Mrs Sullivan: You have indicated at the conclusion of your brief that "There is no law, medical group, church or anti-euthanasia organization which insists we use unnecessary, useless, heroic or unduly burdensome measures to keep a dying person alive." That, it seems to me, is more the intent and indeed the power of these bills than the actual provision of permission to kill. I find it very interesting that we are seeing on the opposition -- I do not think these bills are awfully fabulous, but I just do not see them going as far as you think they are going.
Mrs McLuhan: Perhaps we are just very jaundiced.
Mrs Sullivan: I will re-read them, and I am sure everybody else will as well.
Mr J. Wilson: I appreciated your conclusion in particular, because I made a note in the middle of the brief that I was beginning to wonder whether the highest ideal in society was really life or justice; you know, that argument we have, having studied ethics at university. But at the end you make it clear that it is really a just life that is the highest ideal in society. We tend to forget that around here.
Just to follow on what Mrs Sullivan has said, I can see your argument for this being the beginning of the slippery slope -- and I do not particularly like the legislation; I do not think that is any secret around here -- but I will have to re-read it in light of your comments. It is not so much that a guardian may choose to end someone's life prematurely, because in looking at guardianship, the likelihood is the court, I would think, would try to appoint as guardian someone who is familiar with the patient and is in the best interests of the patient. That is what I would like to think anyway, but I will re-read and revisit that.
I am particularly interested in page 6 -- this follows along the exact same line -- where you see these bills as being also a formula for cost containment. It is probably the boldest statement yet made about this legislation and it certainly shines light on the legislation. I am amazed by it because as I was reading the legislation and going through briefings several weeks ago, in fact months ago, the thought crossed my mind, and here I am faced with the first brief that actually brings it forward.
Have you talked to other groups outside your own group, which is extensive, I know? You mentioned that your relationship with the OMA may not be the best, but do other groups share this vision or this reading into the bills?
Mrs McLuhan: It is actually very difficult, as we have found, to talk to very many people about these bills at all because they are so complicated that it takes months of reading before you can even begin to try to understand what they are saying unless you have some kind of legal background. We find this whole issue of living will legislation and power of attorney legislation, which we definitely believe would lead to euthanasia down the road, is a very new issue in our society. People do not like to talk about dying, so people do not tend to talk about these subjects. We have found, in the last six months in particular, that we have had to have a really heavy emphasis on discussing this among ourselves and with the people we rely on for ethical advice. In turn, we hope to be able to go into the wider public and raise our concerns, so this is just the start of this issue as far as we can see.
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Mr J. Wilson: I appreciate that. Given that this legislation in all likelihood will pass in some form, and we think it certainly needs major amendments, but given that it might, can you see living wills -- or, as you say, it really is in the bill itself: powers of attorney for personal care or guardianship -- being of some benefit?
We are moving very rapidly into a system of rationing health care. That is fairly evident. Look at all the things that have been cut in the last two to three months by this government in terms of procedures that were paid for under OHIP and are no longer paid. I am a Health critic. I get letters and phone calls every day. In fact, we had the example last night of the lady who needs a bone marrow transplant at McMaster University hospital and the hospital saying: "We have done nine this year. We cannot afford to do any more. You will have to go somewhere else."
Maybe it actually will help sustain life if people are able to write ahead of time, "Yes, I do want," contrary to what the new system is, which is to ration health care. Maybe you can do the opposite in your will and write, "I want everything possible done, and I am willing to mortgage the house or whatever to ensure that you do everything possible to sustain my life for as long as possible." It is an extreme argument.
Mrs Douglas: I think the point made in the brief with regard to how much money it is going to cost to administer this particular legislation points out that it really is not going to be a saving to the general public. I do not think we should ever put a cost factor on life so that we are saying the pressure is on the person who has an illness to feel obliged to exit, because he or she is becoming a burden financially to society.
Mr J. Wilson: Yes, but society is moving that way anyway. I do not want to see it either, but it is a debate we must have. It is being forced, I think.
Mrs Douglas: The point that as the population moves on we are losing the base for taxation is a very frightening one too, because there are going to be very many more older people in the next generation. We have wiped out so much of our population through abortion that there is not going to be that tax base there to support the elderly, so we have to have legislation in place now that will protect the lives of individuals. We cannot begin to chip away at that value.
Mr Wessenger: I am having some difficulty understanding your position with respect to the legislation, because I got the impression you did agree with the concept that individuals should have power to make their own decisions with respect to medical treatment. Am I correct that you do agree with that principle?
Mrs McLuhan: Yes, we agree with that.
Mr Wessenger: Okay. If they have the right to make decisions concerning their own medical treatment, should they not be able to designate a person to make that choice on their behalf in the event that they are incapable?
Mrs McLuhan: We are very frightened that people would be forced into having to pick people who perhaps would not be working in their best interests. As we pointed out in the brief, the line of authority seems to stretch towards third parties first, and then goes down the line to having family members involved in these decisions.
Mr J. Wilson: If you look at section 16 of the act, paragraphs 1, 2, 3 and 4, first of all, there is the power of attorney.
Mrs McLuhan: Which bill are you looking at?
Mr J. Wilson: This is section 16 of the Consent to Treatment Act, and if you look at that act, you will see in paragraphs 1, 2 and 3, these are allegedly the third parties. Let's just consider who they are. There is a person named as a power of attorney, so that is a person selected by the patient, or the individual himself or herself, to make a decision on his or her behalf. The other possibility is a person's representative. That again is a person chosen by the patient to make a decision on his or her behalf. The only third party coming ahead is a guardian appointed out of the Substitute Decisions Act, and under that act, family members would obviously have a preferential position with respect to being appointed guardian.
If you go to paragraph 4, there is a list of the family: the spouse, child, parent. So to me, the family is very much involved. They are the primary parties, unless the individual himself or herself has basically chosen another party to make that decision on his or her behalf. It would seem to me that an individual should have the autonomy to choose someone other than a family member to make a decision for him or her if he or she so wishes.
Mrs McLuhan: The way we read it was that the intent seemed to put the court-appointed person to start with, above the family. Certainly, if a person chooses to appoint whoever he or she wishes, that is no problem. But we were really concerned that the whole emphasis of these bills seemed to be trying to remove the family from looking after their vulnerable relatives, and we are very concerned about that kind of philosophy.
Mr Wessenger: That is certainly not the way the bill is drafted, in my opinion. I think Mr Winninger may have some comments, but it is an act with respect to the appointment of a guardian. It is certainly the family, as far as the act is drafted. They have the first right, unless the person decides to name someone else.
Mr Winninger: Just two points: You acknowledge, in your conclusion on page 13, that individuals already have the right to give physicians and families their instructions in case of incompetency and/or terminal illness. My first question would be, what is wrong with writing that down in a power of attorney for personal care so there is no doubt or ambiguity about what the intentions are?
Mrs McLuhan: I think the powers of attorney and the forms of living wills we have seen that have been endorsed in various states in the United States, for example, tend to leave great gaps in exactly how to interpret some of the things that are written down. You can, for example, say you would not want to have extraordinary medical treatment administered under certain conditions, and various American courts have ruled that extraordinary medical treatment includes food and nutrition. We think that is quite a barbaric way for somebody to die, ie, to be starved to death, which can take many days and be very painful. We are very concerned that the forms used by people to give their advance directives could in some cases have legal trucks blown through them by people who actually have another agenda in mind.
Mr Winninger: But you realize that power of attorney for personal care does not necessarily deal exclusively with withdrawal of heroic measures or life-saving treatment. It also deals with survival, life-sustaining treatment, and choices that the donor of the power of attorney makes with regard to the kind of care that will sustain that person's life if he or she becomes incapable.
Mrs McLuhan: Again, the American experience would lead us to presume that most of these documents in fact only refer to withdrawing treatment from people, and do not always give the right to have treatment continued. If the document does indeed specify that treatment must be continued, that would be fine, but if it is only to cover withdrawing treatment we would be very concerned about that.
Mr Winninger: I think it is a little dangerous to use only the American precedent as your yardstick. Thank you.
The Chair: Mrs Douglas, Mrs Woods, Mrs McLuhan and Mrs Dodds, on behalf of this committee I would like to thank you for taking the time out this afternoon and giving us your presentation.
Mrs Douglas: We would like to thank you very much for having us.
ONTARIO DENTAL ASSOCIATION
The Chair: I would like to call forward our next presenters from the Ontario Dental Association. Good afternoon. Just a reminder that you will be allowed a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes to allow time for questions and comments from each caucus. As soon as you are comfortable, please identify yourself for the record and then proceed.
Dr Somer: My name is David Somer and I am president of the Ontario Dental Association. With me today is our director of professional affairs, Ms Linda Samek. We are here on behalf of the ODA, which is the voluntary association which represents more than 5,000 dentists in Ontario.
The mission of the Ontario Dental Association is to support its members in the delivery of exemplary oral health services to the residents of Ontario. Our members provide dental services in partnership with their patients. This partnership is based on the goal of the Consent to Treatment Act that the Minister of Health outlined to members of this committee last December. In her words, "The goal of this legislation is clearly to establish the right of each person in Ontario to make his or her own decisions about health treatment."
We are here today to reiterate our support for the concept of self-determination through informed consent. We believe it is essential for patients to know, first, the findings of their oral health assessment, second, the related treatment options and, third, the probable outcomes, including potential benefits and risks that might be associated with each of the options. Without this information, the patient is not able to choose an appropriate treatment plan. In fact, we would argue that this communication process already serves as the foundation of the patient-practitioner relationship, a relationship that is built on trust.
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The ODA supports the patient's right to self-determination; however, we also recognize the need to ensure patient protection. Ontario dentists are aware of the vulnerability of the incapable person. It is because of our strong support for patient rights and protection that we are here to outline our serious concerns about some aspects of Bill 109, the Consent to Treatment Act, Bill 108, the Substitute Decisions Act, and Bill 74, the Advocacy Act. For the most part, we will concentrate our comments on the Consent to Treatment Act.
In our view, legislation designed to protect vulnerable patients must not be so complex that it serves as a barrier to the provision of needed health services. Unfortunately, the legislative initiatives we see before us lack internal consistency. Because the bills are not complementary, both the practitioner and the patient are vulnerable.
The definition of "treatment" is a prime example of the confusion practitioners will face under this legislation. Under Bill 109, "`treatment' means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purpose, and includes a course of treatment."
Our concern is that this definition is so broad that a practitioner actually may be prohibited from performing a necessary examination or diagnostic procedure to determine the urgency of a patient's condition. Even if the practitioner is able to determine the need for care, there will be circumstances where we will be unable to provide relief from pain for the incapable patient until the process outlined in the bills has been completed and the substitute decision-maker has been located to provide authorization for needed care.
The legislative package before us does not balance the patient's right to consent to treatment with his or her right to receive treatment. As health care professionals, we recognize that there will always be situations that patients and their families will consider emergencies requiring care, at least to relieve pain. Consider for a moment the needs of the confused Alzheimer's patient who would be forced to suffer pain needlessly as we contacted the advocate and waited for the permission of a substitute decision-maker.
In most instances, the same family member who brought the patient to the office for care also will serve as the appropriate substitute decision-maker. Even with this knowledge, practitioners would be unable to perform basic procedures such as examining the incapable patient or providing relief from pain until the entire process has been completed.
Is it not ironic that the stated purpose of the Advocacy Act is to acknowledge, encourage and enhance individual family and community support for the security and wellbeing of vulnerable persons? Yet, when combined with the Consent to Treatment Act, we find that the consent provided by the responsible family member must be set aside until an advocate has informed the patient of his or her right to challenge the finding of incapacity.
It is true that Bill 109 attempts to recognize and provide for patient care in exceptional emergency situations where the patient would "suffer serious bodily harm within 12 hours if the treatment is not administered promptly." How will we make that determination if we are not even permitted to diagnose a patient's condition?
As we touch on the emergency provisions, we wish to expand on some of the problems that may arise because of delays in working through the appeal process. A panel of the review board must commence a hearing within seven days of the receipt of written notice of a proceeding. Even though the board is required to render its decision within one day after the end of the hearing, under the Consent to Treatment Act, emergency care may be continued for only 72 hours. We need to ensure that this legislative package provides for the review process to be concluded in a timely manner. If the provision of emergency care is to be restricted to 72 hours, we believe it would be unreasonable to extend the hearing process to seven days.
We might add that we are not certain of the role of the practitioner in the hearing process. What information will be provided to the board members to assist them in making a decision? Will the practitioner be required to complete a detailed report about his or her finding? Will the practitioner be requested to take time from practice to appear at the hearing? Will the patient be required to appear at the hearing?
Another of our concerns relates to the development of criteria for the determination of capacity. Just a few of the many health care practitioners who will be required to comply with this legislation include chiropodists, chiropractors, massage therapists, physiotherapists, dentists, optometrists and physicians. Because all practitioners do not have training in assessing either the mental capacity or reasoning abilities of an individual, we believe that the inclusion of a set of criteria would go a long way towards ensuring that patients are treated in a consistent manner in their contacts with health care practitioners. We recognize that the legislation envisions such criteria being prescribed under the regulations. On this point, we ask that the regulation-making process include full consultation with the affected practitioners.
The age of consent is another issue Ontario dentists wish to discuss. It is the interference in both the patient-practitioner relationship and the family unit that we find most offensive. As primary care practitioners who treat a large number of children, we recognize the family unit and the role of parental responsibility in care and decision-making on behalf of minor children. This act would interfere with the traditional role of the parent in routine health care decision-making on behalf of the child.
Bill 74, the Advocacy Act, states that it only applies to those over 16 years of age, yet the Consent to Treatment Act requires practitioners to contact an advocate for those under 16 years of age if they demonstrate a wish to give or refuse consent to treatment.
We have all read the news stories about how this legislation would delay the provision of care for the child who may fuss or refuse treatment. I think it is important for us to follow this process through and consider the real impact on the patient and the health care system.
Under the Consent to Treatment Act the child who refuses treatment will be in control. Even though the practitioner and the parent already have agreed on an appropriate treatment plan in most cases, treatment will be delayed while the practitioner explains his or her findings to the child and then documents the fact in writing for the child to review. Next, the practitioner places a call for an advocate to attend and inform the child that he or she has been judged incompetent with respect to the treatment decision and has a right to appeal that decision. In turn, the advocate informs the practitioner, either orally or in writing, that the patient does or does not wish to appeal this finding to the board.
How long will it be necessary to wait for the advocate? At this time it is not clear to us exactly how we set the advocacy process in motion. Will there be a central 800 number or will each community develop and promote its own advocacy services? Can we be assured that an advocate will be available for our patients when and if they are needed?
In rural communities and in the north, the parents might have travelled many miles to have their child examined and treated. Now, the appointment time is used for the administrative details and contacting the advocate and waiting. Appointments will be rescheduled and care might be delayed. For the child and the parent, this means more time away from school and work. In some areas travel costs are extraordinary, and where northern travel grants provide for related travel costs, an avoidable cost burden is placed on the health care system.
Of course, dentists are concerned about the unnecessary complexities of setting the advocacy process in motion for the uncooperative child. However, this legislation also recognizes that consent to treatment may be express or implied. Therefore, we have specific concerns about the implied consent a child gives. Would this necessitate the involvement of an advocate in virtually every treatment provided to those under 16? Will we be required to have advocates assigned to every dental office where treatment is provided to children? If this is the case, will there be enough advocates to go around? Will there be enough funds to support this new system?
As health care providers, we see a complex layer of bureaucracy that may create needless delays in day-to-day management issues regarding patients. We see treatment delays that will have a negative impact on the quality of health care provided to our patients.
According to the Minister of Health, this is not the intent of the legislation. The minister reported to this committee that "...malicious obedience can present us with all sorts of problems." We are here to tell you that poorly worded legislation will cause problems and will add unnecessary costs to the delivery of care.
Practitioners are required to comply with the law. We must not blame the practitioner when the outcome of his or her compliance differs from the intent of the law. This legislation outlines a process, and if that process is not to be followed, we recommend that amendments be brought forward to fix the problems that many of us have identified. In the interim, as responsible professional organizations, we must inform our members of their responsibilities under the legislation.
Let me say that our concerns are not limited to the child. As I pointed out earlier, our views about this legislation are similar when we consider the elderly patient who relies on his child or some other family member for some aspects of his decision-making. The family unit is an integral component within our society. The Consent to Treatment Act recognizes the important role of the family in naming the spouse, partner, child, parent, brother, sister or other relative as those who may refuse or consent to treatment on behalf of the incapable person. Yet they are not able to act on behalf of the patient unless an advocate has carried out his or her role under the act or a guardian has been granted authority under the Substitute Decisions Act or through a power of attorney.
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As a dentist in private practice, Bill 109 frightens me. I believe that there will be a variety of circumstances where the current bills will prohibit my colleagues and me from providing good dental care on a timely basis. The process is so complex that it is virtually unworkable. The paediatric specialists and those who work with the elderly will spend much of their time writing letters to patients, contacting advocates and determining the appropriate substitute decision-maker. In some offices there will be very little time for patient care. Also, in some instances our practices will become engulfed in administrative details related to Bill 109, the Consent to Treatment Act. As a result, the outcome will create a negative impact on the wellbeing on our patients.
There are many questions about this legislative package. As health care practitioners under the Health Disciplines Act we are held accountable for the care that we provide. We are specially educated, clinically trained and licensed to provide services within a specified scope of practice. There is a public complaints process where questions about the service that we provide may be raised. We believe that advocates who will have access to patient records also need to have clearly defined lines of accountability. This step is essential to ensure adequate patient protection and privacy.
The members of our association have attempted to address the very real barriers to care that many of our patients will face as a result of this legislative package. Despite all of our efforts, we were unable to come up with a simple, direct solution to the problems we see. We cannot underestimate the challenge we have before us. In their current formats, the bills are quite simply unworkable.
As health care professionals we support the principles and intent of the three bills. Unfortunately the outcome of this legislation will leave the very patients we all want to protect more vulnerable than ever before. Therefore we ask that the bills be reviewed with the intent of redrafting. Further, we ask for a full consultation process prior to the reintroduction of the revised legislative package. This consultation should involve health care providers and consumer representatives.
We reiterate our support for individual autonomy. We agree that autonomy incorporates the principle of informed consent. As health care practitioners, we look forward to exploring how we might achieve the intended goals of the legislation without compromising the delivery of health care and escalating administrative costs. When the Minister of Health herself said that "adherence to these laws is considered to be malicious behaviour," obviously there is something deeply flawed in the proposed legislation. The ODA offers our assistance to the members of this committee. Thank you very much.
The Chair: Thank you. Each caucus will have about four minutes for questions and comments.
Mrs Sullivan: This is a very useful presentation for the committee, and one that in many ways is reflected by presentations that have been made by other health care practitioners. Your discussion relating to the definition of treatment, your discussion about training and determining capacity for your own profession and for, I put it to you, allied professions in dentistry, your discussion of the harm to the patient that may result from the delay because of the advocacy, the bureaucratic tangle, the lack of accountability for advocates, the access to clinical records and indeed the question of why an advocate would need or require access to dental records for purposes of advocacy is one that stands in my mind.
I am most impressed, of course, with your second-last paragraph, which asks that these bills be withdrawn, redrafted, and that a full consultation program occur with health care providers and consumers. Those are things that we have been demanding for our party. While the intent is laudable, we do not feel that they are workable.
Yesterday we had an indication that there will not be a full consultation process prior to the final consideration on a clause-by-clause basis of these bills. Frankly, we just think that is a nonsensical approach, given the complexity of the legislation and the difficulties and conflicts it would put into place. As a result of that situation, I am basically passing on information to you rather than asking you questions, because we agree with what you are saying.
Mr Poirier: Very briefly, how much consultation did you have before this was brought forward?
Dr Somer: Virtually none. There was some consultation way back in I think it was 1988 in response to --
Ms Samek: In 1989 and 1990 there were principles proposed on consent, but that was in a previous time frame, and nothing had come forward since then. Clearly we never saw anything on advocacy, and we think that consultation was very, very limited.
Mr Carr: Thank you very much for your presentation. I am looking at it from the perspective of, say, an average dentist; take my dentist in Oakville. What is it going to mean to the actual operations of a dental office if this legislation goes through?
Dr Somer: It is not so much the delays in treatment as far as the practitioner is concerned, but it may have very profound effects on patients who have treatment delayed because of this act. I think that is where our concern comes from; particularly, as I mentioned, a patient who may be in pain and is really not capable of giving consent, although the parent might be right there within the examining room who is quite capable of giving consent and providing advice and help in treatment and management of that particular patient. To my mind it takes away that parental right and hands it over to a bureaucracy that is probably not needed. That is where I think the problems come in, in delay of treatment.
Mr Carr: Also as it relates to that, what is your feeling in terms of the associated costs that are going to be involved, costs escalating, whether they be in the medical field or dental, dramatically? How do you see this affecting the cost of the delivery of the services?
Dr Somer: Any time you set up a new bureaucracy to deal with a situation like this there are going to be associated costs with it. How high those costs are going to be is not for me to determine. I think that most of the cost will come out of the pocket of the average taxpayer, not necessarily out of my patient or dentists' or doctors' patients, although perhaps in some cases that may be the case, but more so generally in regard to the costs to the taxpayer.
Mr Carr: Of course, as you mentioned, a lot of dentists who went through school thinking they were going to spend a lot of time actually working on people should have taken a lot of courses in paperwork and administration because that seems to be a lot of what they will be involved in.
Just as it relates to consultation as well -- I know it was touched on earlier -- because I think it is very important, I am getting a tremendous amount of feedback from the dentists in my area. As a matter of fact I have them on my desk, and I read them every day as they start coming in. So they are now, as a result of this, coming in. I just wanted to make it clear that up to this point, your involvement has been very little in terms of the government and consultation, even though this probably will affect you more than anything that has come down the pike in a long time.
Dr Somer: Other than the Regulated Health Professions Act, yes, that is quite correct. We would certainly be willing to act in a consultative role and to talk to this committee or the ministry or whomever in regard to the way this act can be improved to make sure that care is not denied to anybody.
Mr Carr: Just in terms of letting your members know, one of the big concerns is that a lot of people are under so many pressures in the day-to-day they sometimes do not know until pieces of legislation are brought in. What type of feedback are you getting from your members now over this?
Dr Somer: "Irate" would maybe be not too strong a word. Confusion and concern perhaps are the response.
Mr Carr: They cannot believe the government would actually do this, is what I am getting.
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Dr Somer: Well, they are hoping, but there certainly is a lot of confusion as to how it will affect the relationship with the patients and with the families they have in their own particular practices. That is my concern and it is certainly the concern of most other dentists I have talked to about this.
Mr Wessenger: Thank you for your presentation. I have a question to you. With the situation in respect to incapable adults there is no process or legal procedure for you to treat an incapable adult right now under the existing law, unless there is a committee for the person appointed. So I am just wondering, in fact, how you treat incapable people now, so as to give us some guidance of how we should frame our legislation. Since you do not have any legal right to treat them now, I am wondering how you in fact treat an incapable adult.
Dr Somer: In almost all cases it is as a result of consultation with a relative of an incapable person who will give consent to treatment.
Mr Wessenger: Right. So you will look to the closest relative to give instructions.
Dr Somer: Usually, yes, because an incapable person has to get to your office in some way or another and it usually a relative who will bring that patient in in almost all cases. So that is whom, yes, you would look to to get consent.
Mr Wessenger: So you certainly would look for some legislation which would allow you to take those instructions from someone, to give you the legal protection which you do not have now?
Ms Samek: In fact, if I might just add a bit, we are looking at legislation that is procedure-specific rather than legislation that is looking at the competency of the person and the mental capacity in all procedures. Normally now we are looking at mental capacity in facilities. Here we are looking at procedure-specific capacity, where the legislation envisions that you may be capable to make a decision here but not to make a decision here.
Those are situations that most practitioners have not had to deal with on an ongoing basis. When the person is deemed to be mentally fit, they are dealing with those in their offices most often. This is procedure-specific and I believe that patients may in fact start challenging the findings of incapacity because you are putting a lot on each individual practitioner.
Mr Wessenger: I think it is fair to say you would agree that a patient may have a capacity to consent to one procedure and yet not to another because of the varying levels of capacity. Is that fair to say?
Dr Somer: Yes, it is.
Mr Wessenger: The other question I have is with respect to a child. As we have been told many times, there are many children under the age of 16 who are capable of making their own medical decisions. Would you agree with that?
Dr Somer: Yes.
Mr Wessenger: When you have such a child, would you take the instructions of the child to do the treatment?
Dr Somer: What age are you talking about?
Mr Wessenger: I mean a child whom you deem is capable of making a decision.
Dr Somer: Yes, I think you have to talk with him. It is a very personal thing when you are dealing with an individual patient.
Mr Wessenger: That is right.
Dr Somer: If a patient comes in and you feel that child is capable of making a decision and he says he does not want treatment or does not want this specific treatment but wants something else, you may decide you would provide that treatment or perhaps you may decide you do not want to provide that treatment.
I will give you a for-instance: If a 15- or 14-year-old patient came in and said, "Look, I would like to have all my teeth out because I don't want to be bothered with them in the future," that patient may have the right to make that decision and may be capable of making that decision, but I also have the right to say, "I don't agree with your decision and I won't do it."
Mr Wessenger: Right. So you could refer them to another --
Dr Somer: I would not refer them anywhere.
Mr Wessenger: Not refer them, but you would just say --
Dr Somer: "I will not do it."
Mr Wessenger: You would refuse to do it. You would exercise your right to refuse.
Dr Somer: "You have to find somebody else to mutilate your mouth."
Mr Wessenger: But on the other hand, if they wanted to do something that you felt was beneficial for them, you would have no problem in doing it, with a 13-year-old child?
Dr Somer: But I would consult with the parent as well. I would try to set it up so that there at least is a consultation process.
Mr Wessenger: The reason I have some questions in this regard is: Other health practitioners make decisions and take instructions from children now under the age of 16, particularly in the medical area, and we have had a lot of advice from members of the medical community that they presently, under the existing law, follow the instructions of children under the age of 16 and rely on those instructions. So I am wondering why dentists would take a different position than the medical profession in this regard.
Dr Somer: I think, as Ms Samek said earlier, it would be by procedure rather than by an overall consent process. I may accept the decision of a patient under 16 in regard to one procedure and not accept it in regard to another because I do not think that there has been enough consultation or enough information given or the patient has not had time to digest the information for whatever reason.
Mr Wessenger: So, in effect, you would be making your own determination of capacity then for that particular procedure?
Dr Somer: Not necessarily, but I will want to make sure the patient has all the information. I may decide the patient needs some time to think about it or may need some more information, maybe even from another source; maybe from a second opinion in some cases.
Ms Samek: Just to follow up on your comment about physicians, it is my understanding that much of what they talk about centres around, for instance, a child's right to make decisions, a teenager's decision about birth control pills, abortion, issues that are really quite different than we are talking about in the routine care provided in a dental practice. So their concerns are slightly different in that area. We believe that the patient, and the child in particular, is a component of that family and certainly support the family involvement in the decision-making.
Mrs Sullivan: I know we have half a second left for my party. To provide an example from my own family in terms of dental treatment, where a child may well be consulted, I am thinking of the situation where the option may be put before the child whether he or she wants train tracks, head gear, bands, or whatever those other things are, and where the dentist is providing adequate and full information about the use, treatment and ongoing care required from the child, and soliciting advice from the child about which would be the preferable mode of treatment according to that child's own life. The child's preference may well be taken and supersede the decision of the parent, given an equal outcome.
Ms Samek: Patient compliance is necessary.
The Chair: Dr Somer and Ms Samek, on behalf of this committee I would like to thank you for taking the time out this afternoon and giving us your presentation.
Dr Somer: Thank you, Mr Chairman.
The Chair: A notice to the committee that the clerk has just handed out a letter from the OMA pertaining to their presentation yesterday.
Mr Poirier: This morning.
The Chair: Sorry, we lose all sense of time here.
OFFICE OF CHILD AND FAMILY SERVICE ADVOCACY
The Chair: I would like to call forward our next presenters, from the Office of Child and Family Service Advocacy. Good afternoon. Just a reminder that you will be allowed a half-hour for your presentation. The committee would appreciate it if you would keep your remarks to about 15 minutes to allow time for questions and comments from each caucus. As soon as you are comfortable, please identify yourself for the record and then proceed.
Ms Finlay: I am Judy Finlay, manager of the advocacy office.
Mrs Henley: I am Kaca Henley, a child advocate.
Mr Kelley: I am David Kelley. I am the other child advocate.
Ms Finlay: Our presentation today will include the role and the current activity of the Office of Child and Family Service Advocacy and will look at areas of potential service overlap between the advocacy office and the Advocacy Commission. We will speak to our recommendations regarding a system of advocacy specifically for children.
As you are aware, these issues are not only important to your deliberations but they are complex and need considerable attention, more than what is available at this time, so I refer you to our submission. Today I will present the highlights only and hopefully leave ample time for any questions you might have.
The statutory mandate of the advocacy office was given to it by the Child and Family Services Act in 1984 under section 98. Under that, the Minister of Community and Social Services "may establish an Office of Child and Family Service Advocacy to coordinate and administer a system of advocacy, except for advocacy before a court, on behalf of children and families who receive or seek approved services or services purchased by approved agencies." We also advise the minister on matters and issues and perform any similar functions.
The current activity of the advocacy office is that the office was established actually in 1980, although it was not mandated under legislation until 1984. There are presently three child advocates on staff, which actually were underresourced because, although we are located in Queen's Park in Toronto, we do provide advocacy services for children throughout the province.
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The advocates have acquired a broad array of specialized skills necessary for child advocacy. Of importance is their understanding of the systems of service for children. That includes young offenders, children's mental health, child welfare, community living, the medically fragile, the physically disabled, the psychiatrically or learning-disabled and the dually diagnosed children. Also, advocates need to understand the developmental needs of children and have clear knowledge of family structure and dynamics.
The types of advocacy our office provides are rights advocacy, case advocacy and systems advocacy. Case advocacy, however, comprises the greatest proportion of service provided by our office and includes situations such as: families are not satisfied with the service they are receiving; there is insufficient flexibility in policies or practice governing the provision of service; there are insufficient resources; there is lack of information; there are complaints against an agency or agency staff; the client or family is unable to articulate the client's needs; there are situations which are complex and difficult to serve.
This is the nature of the cases that our office becomes involved in. The most common intervention strategy we use is to conciliate or mediate on behalf of the client with the service delivery system. Our advocates rarely assume an adversarial approach.
Of note is that 18.5% of our client group are indeed people over the age of 18 so we do in fact, and have been since its inception, working with handicapped adults. We deal with clients who are physically disabled, adults who are developmentally handicapped and adults who have acquired brain injury.
Systems advocacy is achieved through our relationship with the Ministry of Community and Social Services. Our office has a semi-independent arm's-length relationship with the Ministry of Community and Social Services and we report directly to the senior levels of that ministry. We have a neutral alignment with this ministry. This alignment has been maintained and has proven to be effective in the resolution of systemic advocacy issues particularly as it relates to operational activities.
The office is positioned within the ministry in such a way that it can influence and participate in policy development related to children and families. To the fullest extent, however, the office is seen as independent. Advocacy is delivered proactively and free of potential or perceived conflict of interest in its relationship to this ministry and represents the interests of children and families it serves.
To date we have developed a relationship with other ministries as well. We have developed useful linkages with other ministries to facilitate resolution of case situations regarding rights or case advocacy. The ministries that we have been most active with have been the Ministry of Education, the Ministry of Health or the Ministry of Correctional Services and this on a case-by-case basis only. We acknowledge the need for advocacy services across ministries.
Additionally, advocates have been available for consultation to other ministries, and most recently we have had discussions with two other ministries to develop interministerial protocols for the provision of services through the advocacy office.
That has then been a very brief overview of the activities of the advocacy office. Next I will look at potential duplication and the disparities between the activities of the Advocacy Commission as proposed and those of the advocacy office.
The Advocacy Act is proposing to provide services for vulnerable adults, which will include "those persons 16 years of age or older who are moderately or severely disabled." The Office of Child and Family Service Advocacy is mandated to provide a system of advocacy for children aged 18 or younger. The advocacy office also considers all children to be vulnerable and each referral for service receives a response by an advocate.
As a result, with the creation of the Advocacy Commission there will be two distinct approaches to advocacy for persons 16 to 18. There is the potential for duplication and subsequent confusion for advocacy service providers, referring agencies and service recipients. Protocols need to be established that minimize overlap and confusion and ensure appropriate responsiveness to the consumer.
Second, under the new advocacy system "advocates will be empowered to enter government-funded or regulated institutions in which vulnerable adults reside and to acquire vulnerable clients' records with their consent." This is right of entry and access to files. Advocates from the advocacy office are not provided with the same ability to directly access residences or facilities where children may be in need of advocacy and protection. Unless the child initiates the contact with our office directly, intervention must be sought through the local child welfare authority or ministry officials. Time delays inhibit the immediate response critical for accurate assessment and effective intervention. For example, if a grandmother of a client phones us and is concerned about a child in a child welfare organization, we cannot directly access that child.
Therefore, there would be disparity between the nature and the extent of advocacy services, as they relate to power of access, available for youths 16 to 18 years of age receiving service from advocates representing the Advocacy Commission as opposed to those representing the child and family service advocacy office.
Third, vulnerable persons over the age of 16 seeking advocacy services through the Advocacy Commission will have access irrespective of government affiliation. The advocacy office provides advocacy for children and families receiving services under the Child and Family Services Act. It is legislated under that act that facilities funded under the Ministry of Community and Social Services must inform all children of the existence of our office. That same kind of accessibility is not available to children in schools, in hospitals or in correctional facilities.
Finally, the introduction of the Consent to Treatment Act will establish the provision of rights advocates for young people under 16 years of age who wish to rebut the act's presumption that they are incapable of making treatment decisions and, in so doing, are eligible for a review board hearing.
Under the Child and Family Services Act, subsection 118(7), the advocacy office is given notice of a child's emergency admission to a secure treatment facility. An advocate from our office goes out to see the child forthwith and we review with that child his or her rights and right to a review.
If both acts are in place as proposed, it appears there will be two sets of rights advocates and two separate review boards. Again, this level of complexity will create confusion for both service providers and children requiring advocacy support.
Finally, our summary and recommendations: Acknowledging these issues and building on the experience in child advocacy that has been gained over the past decade, the advocacy office has identified what it believes to be the prerequisites for a system of advocacy for children as follows:
1. That all children are considered to be vulnerable by nature of their relative powerlessness, and, therefore, each child may require the assistance of an advocate.
2. That all initiatives for children adopt the definition of child stated in the United Nations Convention on the Rights of the Child, and that is, "A child means every human being below the age of 18...." This will ensure consistency in the understanding of and approach to children and influence continuity in the provision of services.
3. That there be a system of advocacy for children that is separate and distinct from the adult advocacy system.
4. That there be equal accessibility across all ministries to advocacy services for children.
5. That the same rights of entry and access to records be available to both adult and child advocates.
6. That accessibility to child advocates be enhanced to accommodate the special needs of the more vulnerable groups of children, such as deaf children, geographically and culturally isolated children, and so on.
7. That there be regional visibility and accessibility to advocacy services for children.
8. The final prerequisite is that the administration of advocacy services for children maintain a semi-independent position with regard to its relationship with the government such that it is unencumbered in its ability to proactively represent the interests of children. However, it must establish meaningful linkages with senior officials within the appropriate ministries in order to influence operational activities and participate in policy development as it relates to children.
To implement a system of child advocacy based on these prerequisites would necessitate broad philosophical, structural and legislative changes. Economically, this may not be achievable at this time. Recommendations have therefore been developed to reflect those short-term and long-term goals.
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Recommendations achievable in the short term:
1. That access to children who may require advocacy services be enhanced by empowering child advocates, through the advocacy office, to enter residences and facilities as required. This may be achieved through non-legislative changes to existing structures and mechanisms.
2. That interministerial protocols be developed between the advocacy office and those ministries which have primary responsibility for children in order that there be provision of advocacy services to the majority of children receiving government services.
3. That the advocacy office continue to provide a range of advocacy services to children between the ages of 0 and 18.
4. That the advocacy office continue in its development to address issues of staffing, visibility and accessibility.
5. That the Advocacy Commission, early in its deliberation, take steps to minimize confusion created by duplication in advocacy services provided by the commission and the advocacy office.
Our recommendation for the long term is that there be a single system of advocacy for all children 0 to 18 years of age in Ontario that ensures accessibility and provides a full range of advocacy services.
Thank you.
The Chair: Thank you. Each caucus has about five minutes for questions and comments.
Mrs Sullivan: I think your brief really underlines some of the reasons we have called for the withdrawal of these bills and redrafting. There is substantial overlap. The work of your organization in terms of child advocacy is one that has been useful in the past -- I would like to see it expanded -- but what is of concern is that with duplication of services there would be confusion that would lead to a deterioration rather than an improvement in the service. You have identified those kinds of issues in terms of overlap, and of course there are overlaps with other services provided by other agencies as well. We certainly feel that a major redraft is necessary and then further consultation to ensure that apparent problems are indeed cleared up.
I want to ask you in particular about the case management advocacy that you do. Because there is no definition of the advocate's role in this act, I was very unsure whether case management advocacy is envisioned here.
I would also like to ask you about how you interface with other volunteer advocates who are included in Bill 74 as part of the advocacy structure.
Mr Kelley: To clarify a bit, we try not to become case managers. We try to support the community-based groups or volunteer groups, to be the people who do the ongoing case management. Our role is ideally short-term, to try to go in and deal with the issues people are bringing forth, because we cover the whole province and there are three of us.
We have quite a good working relationship with people who provide advocacy on a volunteer basis, whether as individuals or as a group. There are times when people who are working from within the system can achieve some things that cannot be achieved by people who are working from outside and vice versa. So we try to support them in doing things they can do that we may not be able to do, being civil servants, when it would achieve the results that would be best for the client.
Mrs Sullivan: We have had testimony before the committee that has been quite emphatic that people who work within the system are unable to provide adequate advocacy services for vulnerable people. Would you respond to that?
Ms Finlay: I think we did respond to it in the submission, but our experience has been that if we are able to maintain an arm's-length relationship with the government, we can be proactive in our support of those for whom we are advocating.
What we find most useful by being within the system at the same time is that we have direct and regular linkages with senior officials, particularly in the Ministry of Community and Social Services, and we are regularly able to have input with regard to policy development and operational management.
We find that extremely useful, and we have taken this into account many times when we have reviewed our own practices and our own positioning within the ministry. We wonder whether we would have the same abilities to be able to influence policy if we were outside the system.
Mrs Sullivan: Could I just have a chance for one last question? It is a very short one. Do you ever link up with or discuss the process of advocacy and cross-system needs with the psychiatric patients' advocates?
Ms Finlay: No.
Mrs Henley: Yes, we do.
Ms Finlay: I said no, she says yes.
Mrs Henley: We have been working with them on an ongoing basis. We have met with them, we discuss with them, and many times we will have a case that we will call them on if there is a situation where they might know somebody or might know something. We do work with them.
Mr Kelley: It is usually case specific, so Judy may not have had some cases that dealt with that, but we have.
Mrs Henley: Judy is fairly new.
Ms Finlay: I am new to the office.
Mr Carr: I was interested in just relating to the number of calls. I know the brochure that got sold, because I know it says Charles Beer is the minister.
Mrs Sullivan: We would like to keep it that way.
Mr Carr: Unless he crossed the floor, I do not think he is minister. It said there were over 125 calls per day, and you have three advocates. Is that what you are at now, or what are you getting now in terms of the number of calls?
Ms Finlay: We probably get that many calls per day. In terms of the number of cases, under the child advocacy part of our operations we average roughly 500 cases a year. Those are full-blown cases. We get probably that many calls for information and consultation, however, if there are three of us.
Mr Carr: I know it is difficult to say what is going happen, but if we work on a case management type of system, knowing that we have 230-odd hospitals and 1,000 nursing homes and so on, from your best guess -- and again you are not doing exactly the same work and you do not know -- how many would we need, would you say, to handle the situation if the legislation goes through?
Ms Finlay: For just children?
Mr Carr: No, for the entire legislation.
Ms Finlay: I have no idea. I could speak to children, but I do not think --
Mr Carr: That is the problem we have. Of anybody, you are our best guess at this, and you cannot even guess at it.
Mrs Henley: The problem we have is that we are --
Mr Carr: Just quickly, I will finish. That is a case where we are looking at it and you are the pros. You are the best we have when it comes to advocacy, such as it is today, and yet you cannot tell us, based on the facts. I am sorry, go ahead.
Mrs Henley: Part of it has to do with visibility. Who knows about us? Our situation is such that there are many kids and many families out there who very much need our services, and when they find out about us they say, "How come we didn't know about you?" It is very hard for us to tell because it depends on how widely you are known and how many people there are who need you.
Mr Kelley: Also, there are different systems that use the case management model, so I would try to get as close to a ballpark figure as possible. If you were to take a look at the average case load of an adult protection services worker and of a child welfare worker and then average those out, that might give you a ballpark figure.
Mr Carr: That is why it has been so difficult taking a look at this overall thing, because we put all these things in place. We put support and custody in place and then a year later we needed to add more people. We are continually wrong about it, for whatever reasons.
There is just one other thing you touched on and the Ontario Medical Association talked about this morning. One of the reasons a lot of legislation is put in place is to control, to have checks and balances. They were a little bit concerned there would be no checks and balances on the advocates. Having been involved in this for a period of time, what do you say would be the best method to oversee the advocates? How would you like to see it if you had your choice? None of the above?
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Ms Finlay: It is a difficult question. What we are viewing for ourselves right now is the opportunity to have something like a commission or an advisory board that we would report to. I report to senior levels of government, but because of our position of being at arm's length they do not supervise us in regular kinds of ways. What I think would be worth reviewing for us is an advisory group or an advisory commission of sorts with representations from the consumer groups we serve as well as representations from the ministries we serve. That would be useful for us.
Mr Carr: So the final authority would be something arm's length. You believe you need that?
Ms Finlay: Yes.
Mr Carr: Okay, thanks.
Ms Akande: I was interested in your recommendation of a semi-independent position of the child's advocate, and I was wondering if you would comment if in fact that is not a system that does not promote change, that really does continue to promote the status quo.
Ms Finlay: Being relatively new since September, my experience has been that in fact we have again been able to influence change in terms of operations within the Ministry of Community and Social Services and policy development. So from my position or from my perspective, I have seen us as being able to motivate change and facilitate change as well. But in terms of how clients view us, I think we need that arm's-length positioning so that they see us as being very independent of the government.
Ms Akande: Let me be direct. Do you think there are instances where your intervention is necessary, but even your minor relationship with the government prevents people from calling upon you? Of course, you would be the last person in a position to know that. That has been a statement that has been made. Could you perceive of there being any difficulty with that?
Ms Finlay: It is conceivable, but there are an awful lot of people who call us. There is another thing I meant originally to add when we were talking about being inside the ministry or outside the ministry. One of the advantages of being inside the ministry is we are known, our skills are known, our abilities are known; we know the people in the individual area offices, program supervisors, and we deal with them frequently. That improves our ability to act and to make things happen, and we are trusted. We are deemed to be part of the ministry by the ministry people, and they work with us rather than against us. It does not turn into an adversarial thing.
Ms Akande: I would like to express, if I may, some concern about the fact that the relationship also has an effect of not allowing for or encouraging that permanent change; an acquiescence of how to deal with the situation today rather than a motivation to change the situation so that it may not occur tomorrow. I use the example of the number of repeat situations, repeat clients that you have to deal with around the same issues, even within the ministry.
Ms Finlay: Again speaking from my experience, when we have a cluster of clients or if we have repeat clients who are frustrated in their consistent efforts to receive service, then I bring forward those issues to the senior levels of government, those specific issues looking for changes within policy or operations. In the few that have been brought forward, I know I have been relatively successful at achieving change either for the client or addressing issues related to groups of clients. Do you want to speak to your experience?
Mrs Henley: We have had influences in certain areas. We had a lot of head-injured cases, and in the end there were some changes made in the system to help the head-injured. We were heard on the issue of the dually diagnosed, and some movement has been made in that area as well. So we have had some effect.
Mr Kelley: On an individualized basis, we often get the people who are frustrating everybody in the system or in that particular town or whatever. Often to expect that the situation is going to resolve itself for a long period of time or permanently over a short period of time is somewhat unrealistic in terms of what we can achieve. But often people find having somebody who is not part of the local system involved in trying to mediate and support some shift in what is happening currently to be very supportive. I agree with you that there are some clients we are working with, whether it be an individual or a family, who are probably going to pop up over and over again.
The Chair: Ms Finlay, Mrs Henley and Mr Kelley, on behalf of this committee I would like to thank you for taking the time out and giving us your presentation today.
PLANNED PARENTHOOD OF TORONTO
The Chair: I would like to call forward our next presenters, from Planned Parenthood of Toronto. Good afternoon. I would just remind you that you will be allowed a half-hour for your presentation. The committee would appreciate if you would keep your remarks to about 15 minutes to allow time for questions and comments from each of the caucuses. As soon as you comfortable, please identify yourself for the record and then proceed.
Mr Daschko: My name is Alex Daschko. I am a member of the board of directors for Planned Parenthood of Toronto and also the chair of its social affairs and public issues committee. Beside me is Marion Maye, who is the coordinator for the clinic, which is known as the House of Planned Parenthood, in Toronto. In the audience we have Terry Fallis, who is the chair of Planned Parenthood of Toronto, and Evelyn Kent, who is our executive director. I think we will start our presentation now.
Ms Maye: Stephen and Joan had been having sexual intercourse for almost a year and using condoms sometimes. Joan had been told by her family doctor that since she was a minor, she could not get the birth control pill without her parents' consent. They came to our clinic when Joan thought that she might be pregnant.
Jasmine was a 15-year-old high school student who had been sexually assaulted at a party. She was not supposed to be at the party and so was afraid to tell her mother what had happened. She delayed six months before coming into our clinic to seek medical treatment and counselling. Her reason for the delay was that she was afraid her mother would find out what had happened and kick her out of the house.
Julie was a 14-year-old girl who lived at home sometimes. She came to our clinic complaining of vague abdominal pains. Subsequent testing proved that she had chlamydia, a sexually transmitted disease that, if left untreated, can cause pelvic inflammatory disease and possibly infertility. She did not believe she could get a sexually transmitted disease, because she did not sleep around.
Sonja had just turned 16 when she came to our clinic for a pregnancy test. The test itself was somewhat unnecessary; she was obviously pregnant, in fact six and a half months pregnant. Sonja did not want to be pregnant and so had denied her condition. She told us that neither her parents nor her teachers had made any comment to her about the pregnancy. Her alternatives were now limited, and her need for prenatal care was imperative.
These scenarios are not fictitious, but rather reflect just some of the cases Planned Parenthood of Toronto deals with on a regular basis.
Mr Daschko: At this moment, we would like to give you some background describing who we are and what we do.
Planned Parenthood of Toronto is a community-based voluntary agency whose purpose is to promote the health and wellbeing of individuals and the community by encouraging and facilitating responsible and informed decision-making with respect to healthy human sexuality. This is achieved by the provision of primary health care, education, counselling and information services for individuals and groups of all ages, and by the provision of informed social comment and appropriate research. These activities are provided by a large number of trained and dedicated community volunteers and a small multidisciplinary professional staff.
Although young people under 16 years of age do not make up a large percentage of our clients, those who do use our services are often at highest risk and are often the ones who delay seeking help. This is our reason for speaking before you today. Specifically, we wish to express our concerns over certain provisions of Bill 109, the Consent to Treatment Act, 1991.
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On the whole, we recognize the intended positive spirit of the proposed legislation, that is, to respect people's rights to consent when capable and to provide protection that safeguards their best interests when they are incapable. However, we strongly believe that for all its good intentions the proposed legislation will set an antagonistic environment of fear for those involved, for people under 16 who wish to obtain confidential counselling and, on the other hand, for professional health care workers.
This standing committee has no doubt been presented with a series of statistics demonstrating the health concerns of people under 16 years of age and their need for professional confidential medical advice. Without diminishing the value of any of these statistics, we wish to highlight those that have a direct bearing on our organization. For example, statistics demonstrate that 31% of male and 21% of female grade 9 students have had sexual intercourse at least once. That figure increases to nearly one-half of grade 11 students who have had sexual intercourse at least once. In a 15-year span between 1975 and 1989, pregnancies in Canada for adolescents under 16 have averaged approximately 476 per year, reaching a high of 646 in 1979.
Fortunately these figures have been steadily declining in recent years. The reason for this, as one report suggests, is "expanding sexuality education, expansion of birth control services operated by health units, and an increased willingness by physicians to cope with the sexual needs, in a confidential manner, of young people."
The rate of sexually transmitted diseases in adolescent females in Ontario between 10 and 14 years of age, specifically gonorrhoea and chlamydia, has been fluctuating during the same 15-year period. There has been a recent upsurge in antibiotic-resistant strains of gonorrhoea. Chlamydia also poses a real danger in that it produces very mild symptoms, if any at all. This is why it often goes undiagnosed. Without medical treatment, it can result in ectopic pregnancies. As one report points out: "The rate of ectopic pregnancy due to chlamydia in Canada has been increasing through the 1980s. Untreated chlamydia infection is also established as a major cause of infertility."
In Ontario, as of December 1991, there were 126 people who were HIV antibody positive in the 16-to-19-year-old age group. In the next category, the 20-to-29-year-old age group, there were 3,196 young people. Six people have already developed AIDS in the younger age group, and in the 20-to-29-year-old group, 407 people have developed AIDS. Since it is believed it takes between five to 10 years to develop AIDS after contracting the virus, we can assume that some of these older individuals became HIV positive while still in their teens. Some of these people would have been recipients of contaminated blood or blood products. However, most of these people contract the HIV through sexual contact or injection drug use.
Having established that a significant number of people under 16 are sexually active and therefore at risk of unplanned pregnancies and sexually transmitted diseases, it is also equally imperative to consider the importance this age group places on access to confidential medical assistance. One survey suggests that over 80% of high school students have a strong concern for privacy and confidentiality from their doctors. The clients at our community health centre tell us this is the number one reason for using our clinical services.
Unfortunately, none of these statistics demonstrates the number of people in this age group who refuse to seek medical assistance due to their fear of non-confidentiality, even under present circumstances as we know them. Such fears may currently be based on rumours, myths, street corner and locker room advice. Anything that further undermines whatever trust this age group places on the current system could lead to tragic consequences. To this end, specific aspects of Bill 109 will further such fears and consequences.
As submitted earlier this afternoon, Planned Parenthood of Toronto recognizes the need to respect people's rights to consent when capable and to provide protection that safeguards their best interests when they are incapable. However, Planned Parenthood of Toronto strongly objects to the arbitrary designation of any age as a criterion to determine capacity to consent with respect to treatment. The proposed legislation, in subsections 8(1) and 8(2) and section 10, stipulates a benchmark of 16 years of age.
However practical it may seem, any arbitrary measure is at least counterproductive and at worst fatal. The reason for our objection is primarily threefold: (1) people mature at different ages, (2) an environment of confidentiality must be preserved in order to facilitate and encourage young people to seek help, and (3) we must provide the freedom and environment for health care professionals to do their jobs properly.
Dealing with our first concern, maturity and consent, it should not come as a surprise to anyone that maturity cannot be designated at any particular age. Many people under 16 are mature enough to provide informed consent to treatment. On the other hand, there are those older than 16 who are incapable of providing informed consent. Consideration must also be given to the type and complexity of treatment. All of these factors have a bearing on an individual's ability to provide informed consent. Therefore, the obvious determinant for an individual's ability to provide consent must be assessed on its individual merits in each case. For example, an individual's recognition of a health problem, and the initiative in seeking help, provides some evidence of competence. Judging each case on its individual merits may not be the easiest method, but in the long run we believe this is the best method for all concerned.
Regarding the issue of confidentiality, it is essential to maintain a high degree of confidentiality between the health care worker and the client, regardless of age. A strong sense of trust and confidence is the basic ingredient in providing thorough diagnosis and appropriate treatment. Without this environment of trust, the client may not even seek professional assistance.
The issue of the fear of litigation in the minds of health care workers under the proposed provision of the legislation must be considered. Under the legislation it would be much easier for a health care worker to assume that any individual under the age of 16 does not have the ability to make an informed decision. Fearing litigation from parents, we believe the health care worker may not attempt to rebut the assumption of incapacity and may therefore refuse whatever treatment is necessary.
In summary, because of our concerns with the proposed legislation, Planned Parenthood of Toronto wishes to recommend to the standing committee on the administration of justice that any reference to an arbitrary age be removed from the legislation. We believe that the best and most enlightened course of action would be to continue the current practice, that we allow the common law criteria to continue to determine each individual case on its own individual and unique merit. This is by far the superior route to take, in that it provides justice and assumes responsibility for all those who provide and seek service.
Finally, we would like to thank this particular committee for allowing us to express our concerns on this particular issue today.
Mrs Sullivan: This is a useful brief. I should tell you that several other organizations, including public health officials, have appeared before the committee and expressed the same concerns that you have in relationship to counselling, education and advice on sexuality and STD matters. I think it is fair to say that the Minister of Health has signalled that there will be amendments coming forward. We had hoped we would be able to see those amendments during this public hearing process so that there could be a judgement and comment made on the efficacy of those amendments. However, the government has refused to do that.
There is, I think, all-party concurrence with respect to the age matter. Bill 109 speaks about a health practitioner as a person who is registered under a licence -- the government has not been able to tell us who in fact they are going to include in this schedule -- or a person who is a member of a prescribed category. We would assume, although the government has not told us and appears not to know yet, that those people who are going to be described as health practitioners may indeed include counsellors and may include social workers and people who are providing a counselling service that is related to health care, whether it is nutritional or whether as in your case, it relates to sexual and birth control planning issues.
I wonder if you have examined the acts from the point of view of your staff being affected as health practitioners under the acts, and indeed where you might see problems in terms of delay if the person with whom you are dealing is considered to be incapable of making a decision on his own behalf.
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Ms Maye: I am not sure I understood your question at the very end.
Mrs Sullivan: You may have a situation where a person may have a developmental difficulty who, in the course of counselling you would provide, would be directed to that person at a level of understanding for that person. Given the kind of delays that could occur under this act, which other health care practitioners have pointed out as being a serious matter of concern, in your particular area of counselling would you see that as a difficulty?
Ms Maye: Certainly that is a concern. The type of treatment, the type of counselling we do is not usually urgent or needing immediate attention. I think the real problem for us is not being able to make that decision whether this person is competent to decide and having age make it for us. Certainly our doctors are willing to rebut that. What this bill does not tell us is how they are to do it specifically and what may happen if a parent does come in and does feel the doctor has made that assumption wrongly and wishes to press charges. We do not know how to defend ourselves.
A bigger concern is that there are physicians and health care workers out there who are already refusing to treat minors and are not seeing them. Those are the people who are coming to us. You mentioned the concern about who this does affect, and we are concerned about who this does affect if it goes through. We have counsellors. We have a social worker. Are they included in this as health care professionals? They are not registered. You are quite right to say that is also a concern of ours.
Mr J. Wilson: Thank you very much for your presentation. As you know, the Ontario PC Party has put forward an amendment to deal with the age issue and I am grateful to hear from Mrs Sullivan that now has all-party concurrence.
Mrs Sullivan: There was before you put your amendment on the table.
Mr J. Wilson: There was not. At least we put our amendment on the table, but it is nice of you to say so. I always have to go after Mrs Sullivan in two senses: I also follow her in terms of speaking order all the time.
I think what Mrs Sullivan might have been getting at, and she might shoot me for this, was that in your setting an advocate may have to be called in in the scenario Mrs Sullivan was talking about where you find an incapable person before you. You have really not talked about Bill 74, the Advocacy Act. It seems to me you people do advocacy but you may be having another government-appointed advocate come in. Do you have any thoughts on that bill and its effect on your daily routines?
Ms Maye: I have read the bill, but certainly not in depth. I am not convinced it will affect us to any great extent. I have been at the clinic almost six years full-time and part-time now. I have not yet come across anyone under 16 who has come to us and not been able to make a decision or who we have not felt has been competent. The fact that they make it to our clinic and the fact that they know why they are there and what they want proves they are somewhat competent to make that decision.
There have been times when we have asked clients to go away to think about a decision whether or not we want to treat them, but we have never had to refuse based on the fact we did not feel they were competent. Certainly at all times we would also ask them to bring in their parents, especially the younger ones. It is the rare client who comes to us willing to bring in a parent.
Mr J. Wilson: That makes sense, that in your setting you are just not seeing incompetent young people. If you got rid of the age discrimination there you would be all right.
Mr Daschko: I think it is also important to underline, although we did not state it in our brief -- it is almost a given -- I think it is important to state for the record that in a lot of these situations when a person is under 16 years of age, Planned Parenthood of Toronto would of course encourage her to go through the family and to use the family support system that could be in place. But in a lot of situations that support is not there, either because the guardian or the adults do not know how to deal with the problem or because they may react in such a way that could terrify the person in question. Obviously in those circumstances and situations we feel the confidentiality aspect is very important.
Ms Maye: There are already exceptions to this confidentiality that we follow, and we did not put this in. But certainly in cases of abuse of minors, whether that be sexual, emotional or mental, there is a law already there and something that we already follow. While we are very concerned with maintaining confidentiality, we tell our clients that there are exceptions to this.
Mr Wessenger: I would just like to advise you that certainly our ministry has no intention, there are no plans and we are not even considering bringing social workers and counsellors under the definition of health practitioner under this act. I will just ask the question: Do you want us to consider doing that?
Mr Daschko: It sounds like a loaded question.
Mrs Sullivan: At least we know one of the answers.
Mr Daschko: At this point I think it would be difficult for us to respond on that basis because I am not even sure, considering the type of staff we have and so forth -- I do not know.
Ms Maye: Most of our counselling is giving of information. It is not directive counselling; it is informing clients. It is giving them information they may need to have. I am not convinced that even if this was to go through for counsellors and social workers it would have a great deal of impact on what we do at our clinic at the present time.
Mr Wessenger: I want to assure you that we do not think it is appropriate to have counsellors and social workers covered under this legislation as health practitioners.
Mr Poirier: Tell them the good news about age 16.
Mr Wessenger: I think you have heard the indication about the age of 16. We have not heard a presenter make a position other than to say the age 16 should go, so I think that is a pretty good assurance to you.
Mr J. Wilson: Why do you not give us your amendments?
Mr Wessenger: You have to relax. We might vote for yours, Jim.
Ms Maye: The question, I guess, for myself would be, is there going to be an age, or have you decided to not have an age at all, if you have decided unanimously that 16 should not be it?
Mr Wessenger: Let me just say that every presenter has recommended there be no age and that we use the common law position. We have not heard anybody ask for another age.
The Chair: Mr Daschko and Ms Maye, on behalf of this committee I would like to thank you for taking time out this afternoon and submitting your brief to us.
The committee adjourned at 1628.