NATIONAL COUNCIL ON BIOETHICS IN HUMAN RESEARCH
JUSTICE FOR CHILDREN AND YOUTH
ELIZABETH LEESON
JEANETTE DUFF
CONTENTS
Friday 13 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
National Council on Bioethics in Human Research
Judith Miller, founding director
Justice for Children and Youth
Brian Weagant, executive director
Cheryl Milne, staff legal counsel, CFCYL
Sheena Scott, staff legal counsel, CFCYL
Patients' Rights Association
Anne Coy, president and co-founder
Harry Beatty, vice-president
Casey House Hospice
Douglas Graydon, coordinator, counselling services
Elizabeth Leeson
Jeanette Duff
The Advocates' Society
Eleanore Cronk, vice-president
Ray Colautti, director
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
Chair / Président(e): Cooper, Mike (Kitchener-Wilmot ND)
Acting Chair / Président(e) suppléant(e): Marchese, Rosario (Fort York 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
Marchese, Rosario (Fort York ND) for Mr Fletcher
Ramsay, David (Timiskaming L) for Mr Sorbara
Ruprecht, Tony (Parkdale L) for Mr Poirier
Sullivan, Barbara (Halton Centre/Centre L) for Mr Chiarelli
Ward, Brad (Brantford ND) for Mr Malkowski
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 0945 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.
NATIONAL COUNCIL ON BIOETHICS IN HUMAN RESEARCH
The Chair: I call to order this meeting of the standing committee on administration of justice. I would like to call forward our first presenter, from the National Council on Bioethics in Human Research. Good morning. 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 are comfortable, please identify yourself for the record and then proceed.
Ms Miller: Thank you for the opportunity to meet with you today to discuss the proposed Bill 109, the Consent to Treatment Act. My name is Judith Miller and I am the founding director of the National Council on Bioethics in Human Research. The mandate of my organization, which is described in the materials you have in front of you, is to promote high ethical standards for health science research with human subjects through consultation and advice to local multidisciplinary research ethics boards.
I have been personally and formally involved in research ethics for close to 10 years. In 1983 I joined the Medical Research Council of Canada, where I helped revise the council's Guidelines on Research Involving Human Subjects. In 1987 I coordinated an International Summit Conference on Bioethics, which focused on developing international standards for research with human subjects. More recently, I was involved in redrafting the International Guidelines for Biomedical Research Involving Human Subjects prepared by the Council for International Organizations of Medical Sciences, which is affiliated with the World Health Organization. Now in my position as director of NCBHR, affectionately known as "NC Bear," I assist local research ethics boards in interpreting and applying the research standards set out in the MRC guidelines.
Today I wish to examine with you two areas of the bill. Since I shall do so from quite different bases, I shall treat the areas separately and divide my presentation into two distinct parts.
First, I wish to examine with you, on behalf of NCBHR, Bill 109's position on research with individuals unable to give consent, section 15, and the designation of individuals who speak on behalf of incapable people, section 16. Both sections would have major impact on health sciences research in Ontario.
I shall start with section 15 which, as written, prohibits research with individuals unable to give consent. By juxtaposing research with nontherapeutic sterilization, paragraph 2, and transplantation, paragraph 3, section 15 links research with two illegal procedures. As Professor Bernard Dickens noted in his brief to you on February 12, this juxtaposition implies the illegality of research involving a person who is incapable of consent. As drafted, this article would seriously impede much needed research for the benefit of vulnerable individuals.
Two years ago, NCBHR was asked to review the concerns of researchers, physicians, lawyers and the public about research involving children. In response, NCBHR, collaboratively with the Canadian Paediatric Society, formed a task force on research involving children. The task force conducted its investigation for two years and has recently completed a report entitled Research Involving Children. The positions in this report diametrically oppose section 15. The report affirms that the ethical principles of justice and of doing no harm are as fundamental as consent. It argues that there must be justice for children in the pursuit of research. The decision for or against a child's participation should be determined by parents, presuming the research has been approved by a research ethics board as scientifically and ethically valid. The assent of the child should also be sought where possible.
Members of the task force concluded that excluding from research those who cannot give consent causes them harm by denying members of these groups the benefits of research which could improve their care and chances of recovery. It is unethical and scientifically invalid to apply to sick persons treatments that have not been investigated. The task force argues for research with children on both ethical and legal grounds provided that the research questions are formulated in scientifically and ethically sound protocols and can only be answered by involving children.
You have received at the back of my brief a short article describing the task force report and I will leave this advance copy of the complete report with Lisa Freedman or someone here to distribute to you. I will also leave biosketches of the members of my council in case you are interested. We welcome your comments on the report and shall be seeking wide public discussion to refine this document. My text refers to particular sections relevant to our discussion of section 15: sections on the nature, benefits and importance of research with children; the ethical rationale for research with children; recommendations, including new procedural safeguards suggested for protection of children who serve as subjects.
In keeping with the task force report, support for research with vulnerable groups characterizes guidelines developed in Canada and other countries. As Dr Eric Meslin pointed out in his presentation to you earlier, since 1975 every major international and national code of research ethics has permitted the involvement of patients who are unable to consent, provided rigorous conditions are followed. In the Canadian system of ethics review of health science research, these conditions are applied by conscientious investigators working in concert with independent local research ethics boards that must review and approve research protocols before they can be conducted. Conditions include that the research be scientifically important, that it be impossible to conduct the research on patients who can consent, that it is likely that the benefits to the research subjects outweigh the impositions on them, and others listed in my text.
Among the 40 recommendations of the task force, the summary article draws your attention to three major points on page 3 of the article. Please take the time to consider these and all the task force recommendations in context. They propose many procedural safeguards that merit your attention as you examine legislative options.
It is the work of the national council to support and encourage research ethics boards in applying standards outlined in the MRC Guidelines on Research Involving Human Subjects and in maintaining high ethical standards for research. The Canadian system of ethics review relies on the assessments of these local boards to ensure that community values are respected in weighing the acceptability of proposed research and that those in a position to monitor the research on a continuing basis are responsible for its approval.
In light of existing protections and the importance of research involving persons unable to give consent, the National Council on Bioethics in Human Research joins with Professor Dickens, Dr Fred Lowy and Professor Eric Meslin, all of whom presented to you on this point, in recommending that paragraph 1 of section 15 be omitted from Bill 109 and that the bill specify that, "Nothing in this act changes the law affecting a medical procedure whose primary purpose is research proposed on a person who is incapable of consenting to the procedure."
Further, I wish to draw to your attention section 16. Even if paragraph 1 is removed, the implications for research of section 16 are profound. This section seems to require that consent be sought primarily from a legal representative or advocate rather than from a family member, even when there is no evidence that a family is not acting in the best interests of the individual. This procedure poses practical and philosophical difficulties.
Consider for a moment the instance of a three-year-old child who is eligible to participate in an ethically and scientifically sound study to test the effectiveness of one treatment against another. Is it reasonable to ask a physician-investigator to verify whether a guardian had been appointed under the Substitute Decisions Act, to find out whether there is an attorney for personal care under a power of attorney, to inquire whether there is a representative appointed by the Consent and Capacity Review Board, and all these before seeking authorization, for research with the child, from the parent who accompanied the three-year-old to the office? The net effect of section 16 will be to exclude children and other vulnerable populations from research.
I am well aware that the issue of consent for incapable subjects is ridden with legal and ethical conflicts. At the same time, I have learned from experience in research ethics that it is possible to create sound and tried standards and mechanisms at the local, national and international level to ensure the ethical conduct of research with human subjects. Controls to achieve consent and respect are hard to draft into legislation that helps achieve an appropriate balance between short-term protections for the individual and long-term benefits for both the individual and society. Despite its strengths and admirable goals, the bill as proposed could result in serious harm.
The Ontario Minister of Health has noted that she plans to deal with medical research with individuals unable to consent separately from Bill 109. Should she do so, the National Council on Bioethics in Human Research would be pleased to collaborate in this work.
Now I want to turn to the second part of my presentation, the measures of Bill 109 and of Bill 74, the advocacy bill, related to consent for treatment for psychiatric patients. While I have professional views on these matters, I am speaking here in a personal capacity, from the heart, not as a representative of any organization. I will speak with you from painful experience about matters that are extremely hard to live through and also hard to convey if you have not experienced them directly. The potential detrimental impact of your bills is too serious for me not to share with you some personal and private experiences to give you at least a small window on the harm Bills 109 and 74 could cause.
Let me recount for you a few real instances to show you how even the current Ontario Mental Health Act frustrates those who seek to help patients and how the intended added protections of Bills 109 and 74 will worsen an already difficult situation. As I recount my experiences, I shall refer to several provisions of your bill, namely, subsections 13(2) and (3), which give precedence to any expressed wish of the individual unless that individual has been formally declared legally incompetent, and sections 10, 16 and 20 of Bill 109, which require advocates, legal hearings and significant delays in any treatment of incapable patients unless they are emergency measures to prevent imminent serious bodily harm. I shall speak briefly also to the very narrow limits in the way the criteria for emergency treatment, subsection 22(1), are often applied and interpreted by doctors, hospitals and courts.
For me, the most disturbing element of the proposed bill for consent to treatment is section 13. This section honours the momentary wishes of a patient to refuse treatment.
The proposal is problematic in the context of personal experience with a loved family member with psychiatric illness. When my son is ill, he may recognize that he has a problem at the early stages of an episode. He has asked on occasion, for example, to be taken to hospital. As he becomes less well, he denies there is any problem and therefore any need for treatment. Frequently, when ill, he becomes paranoid and believes that medications are poisonous. A large part of effective treatment is bringing about his awareness and acceptance of his illness and the need for treatment.
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I am told by health professionals, and have certainly seen in my interactions with other patients in hospital, that this is not an uncommon sequence of events. It typifies numerous conditions including, for example, manic depressive illness, schizophrenia, anorexia nervosa. I am not saying anything more here than Alcoholics Anonymous says, things that AA, you and I know are true. While someone who is mildly alcoholic or mentally ill may be willing to seek treatment, those more severely afflicted will deny the problem. The first step of the AA credo is recognition of the illness, and an integral part of their approach is that an alcoholic often cannot do this alone. The same is true for mental illness.
When becoming ill, my son may be rational and relatively clear for a few minutes, and then quite irrational and disconnected. You may believe this is no problem under the Mental Health Act or under proposed Bill 109, that someone in this state expressing wishes not to take medications would receive needed treatment because the person would be legally incapable and someone would speak on his behalf and in his best interest. The reality experienced is far from this.
Incapability, in practice, seems to be defined by extremely limited boundaries. Thus, for example, when my son was reporting a series of imaginary murders to the police and requesting their protection from imaginary people he thought were after him, when he had not eaten anything for days because he thought food was poisonous, when he was living in an apartment where the toilet had been plugged for weeks because he would allow entry to no one, including a plumber -- and I did sneak in once when he was out and leave some food, hoping he would eat it -- he was not considered incapable or certifiable, nor admitted to hospital. Nor would he, at this stage of his illness, admit to being ill.
Bill 109 would make the situation even worse. It would require honouring a momentary wish expressed by someone in this state not to have treatment that could bring him back from what even he considers a nightmare. Subsections 13(2) and 13(3) were probably drafted with someone not mentally ill in mind and intended to respect last-minute changes of mind about treatment or no treatment. Of course there must be a way to respect these and to respect the wishes and needs of the mentally ill as well. I argue that the general provisions here are dangerous and harmful for the psychiatric patient and must be changed in the best interest of these patients, their families and, ultimately, society.
I also ask you what is respect for a psychiatric patient? Is it taking a momentary wish, even of someone in a somewhat deranged state, as a definitive guide? Bill 109 might condemn people like my son to imprisonment within their illness, and it is a prison. Imagine a state where you cannot sit still, where your brain keeps firing disconnected thoughts so that when you start a sentence your mind flits before you complete it, where you hear voices in your head that are louder than those outside.
In his last illness episode, my son broke four pairs of glasses because he could not stand the things he was seeing. It took him months of struggle to realize it was not the glasses at fault but his illness. Mental illness is hell for the people involved, both patients and their families. When ill, my son has repeatedly indicated he did not want medications, yet he has also expressed enormous relief and gratitude when the medication stilled the hallucinations and allowed him to reconnect his thoughts and pick up the disrupted fragments of his life. The law must give health care providers the scope to treat those in need.
Let's turn now to proposed provisions for advocates. Please imagine for a moment that after weeks of worry about what is happening to your child, the agony he is experiencing, you finally manage to convince him to go to the hospital, a safe environment where treatment is available. With the proposed legislation, if I have understood it correctly, treatment would not be available for the incapable without significant delays until an advocate, a stranger who does not know the patient or his history, had talked to him about his rights to call a board to obtain legal services and to refuse treatment until the board and possibly an appeal are completed. Scared and confused in the first place, so advised, my son is extremely likely to refuse treatment.
The advocacy system, as proposed, is likely to build barriers to access to care for the incapable. It is also likely to prove difficult to find competent advocates and to monitor that the system is working.
The often burdensome and important role of family members and health service providers who exercise their best judgements, based on care for and experience with the patient, must not be supplanted, as called for in section 6 of Bill 74, by an elaborate system of neutral advocates who remain strangers regardless of how well intentioned they are and how many personal experiences with disabilities they have had.
Surely clear evidence of concern in the particular case, at least a suspicion of neglect or abuse should be a criterion for involvement of an advocate of this nature. If you are going to spend money, I plead with you to spend it on more medical care and services rather than on advocates and legal hearings.
I also must remark on the provision that, as I read it, entitles an advocate to enter without a warrant any premises where there may be a vulnerable person. Subsection 21(1) of Bill 74 could wreak havoc with families and spouses doing their best to cooperate with an ill family member. The stress level in coping with mental illness is often extremely high. The loss of privacy and of confidentiality implicit in this provision should not be imposed as an additional burden.
The current Mental Health Act has so many individual protections that we have found ourselves at times hoping for a violent act of small dimensions to ensure that our son will be admitted to a safe place, one for example where he will not walk across the street in front of a car because he is watching and listening to his inner world, and where he will receive the needed treatment to help bring him back to his normal, responsible and life-enjoying self.
Through my experiences I have been in contact with a broad array of health professionals: physicians, nurses, orderlies, social workers. I am struck by their common frustration that individual protections have gotten to a point under the current system where health professionals can do little to help. People are passing in and out, recovering slightly so that they are no longer technically incapable and required to follow treatment, leaving in this very fragile and unstable state, discontinuing treatment and regressing to return as though in a revolving door.
Overzealous individual protections can confound the long-term ability of health professionals really to help, and condemn the patient to the consequences of erratic wishes. Let me repeat that. Overzealous individual protections can confound the long-term ability of health professionals really to help, and condemn the patient to the consequences of erratic wishes.
Any legislation must ensure that vulnerable persons are empowered, protected and respected. In achieving these goals, patients must not be denied the benefits of the treatment they need to have a genuine chance of recovery.
Despite the best intentions of the authors, what you have here in Bill 109 and Bill 74 does not work. The goal is right; some of the method is wrong. I recommend that the noted relevant sections of the bills be redrafted. One way to proceed would be to rely more extensively on advance directives and provisions of the Substitute Decisions Act than on casual oral wishes of individuals who may be showing extremely poor judgement, although not technically declared incapable.
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Redefinition of the criteria in principle and in practice for determination of capability might also help. Treatment decisions for those who are not capable should take into account both the views of the patient and his family. In general, family members, not legal representatives, should be the primary group to give consent on behalf of an incapable individual, except where there are clear instances of neglect, abuse or conflict of interest.
More respect should be given to the positive contributions that health service providers can play in informing patients about their rights, and more limits placed on formal hearings and on the role of mandatory neutral advocates. It may also be worth exploring approaches in other jurisdictions to seek better solutions.
I am not sure that my suggestions are the right ones, but I know there are answers and I know that if we put our efforts together we can surely satisfy your concerns and those of patients and their families.
There are real strengths in these bills, lots to build on to meet legitimate concerns. We need more time to restudy options and to find better ways to help patients break out of the vicious cycle of imprisonment in illness and to protect their rights, ways truly "to promote respect for their rights, freedoms, autonomy and dignity," as called for in clause 1(a) of Bill 74, but in this case, of all involved.
The authors have obviously done their very best to protect vulnerable subjects and patients. But how many of them, how many of you, have really experienced the current system and can really imagine what it will be like under the new bills? I have to tell you that I have made an effort to do this in a calm way and that however calm my presentation may have been, there is an emotional storm going on in me. I have tried to do this because of my professionalism and in the hopes that by so doing you will be able to hear me better.
Now I would like to thank you for listening to me in both my hats, that of the national council, in terms of consent for research with vulnerable subjects, and as a mother.
The Chair: There are only about two minutes left, so I will allow one brief question from each caucus.
Mrs Sullivan: Thank you very much, Ms Miller. Wearing both your hats, you have been able to put forward a highly articulate and highly analytical view that is going to be poignant in terms of the consideration of these bills.
We have asked that the bills be withdrawn to take in many of the considerations you have brought forward and that other groups and organizations, including health care providers and advocacy groups themselves, have put forward. We believe there are fundamental problems with these bills that require a redraft and additional discussion and consultation, with not only the health care providers but with patients and with groups and agencies that support patients who are vulnerable and in those circumstances.
So far the government has refused to do that. We are very disturbed about that because of some of the exact circumstances you have raised. As you indicated, we have had previous testimony regarding the research areas, which my caucus had raised initially in committee when the first briefings were done. We are very concerned about those areas, and I think it was very useful for you to bring the particular issues of research related to children before the committee. So far we have emphasized more of those research concerns in relation to the vulnerable adult, and I think the issues you have brought forward are important. I do not think I have any questions other than to say this has been a very useful presentation.
Mr J. Wilson: As Mrs Sullivan has said, we have heard a number of the points before, and both of our caucuses have expressed the desire to see changes in the legislation. We hope the government is listening to that with sincerity.
I do have a quick question, though. You did not touch on the aspect of guardianship in the legislation. I was the only member on second reading in the Legislature to ask that these bills be withdrawn right away, because I was just being flooded as Health critic by not only concerned health care professionals, but by concerned families.
Since that time, though, my colleague Mr Sterling, who is a member of this committee, has managed to convince me that there might be some merit in Bill 109 and Bill 108, and that one of those areas that might have some merit is guardianship. In particular, I have a family member who suffers from schizophrenia, so I know the horror you go through as a family. Have you thought of that area where you might be able to get guardianship over your son? There are a number of groups that just hate the whole concept of guardianship, but in the areas of schizophrenia and manic depression there may be some merit.
Ms Miller: I would really have to look at the bills more, and at exactly what they say in that area to know. I guess I live in continual hope that he will be able to take care of himself, and each time we go through a remission period I hesitate even at the notion of seeking guardianship because I try to respect his individual independence, and that would be removal of it. I do think there is something very definitely positive in looking at the Substitute Decisions Act for when he is incompetent. If that is what you are talking about, I think that might be a real strength. But I do not know that I would be able to approach him with that; that would be an insult when he is well and impossible when he is sick.
Mr J. Wilson: Yes, it is a very divisive legal channel to have to pursue.
Ms Miller: Yes, and certainly it would take an awful lot of sensitivity and care, and I do not know what his reaction would be. I think he would see it as a lack of trust in his ability to take care of himself and to keep on when he is well. So I do not know that I could do that. I think the mechanism is good to have in place and in practice; I do not know if it will work. Does that help?
Mr Wessenger: First, with respect to the matter of research, there is no intention to change the existing law on research, and I can assure you that if there is any ambiguity, we intend to remove that ambiguity. Second, with respect to section 16, section 16 would only have a family member involved, because you can only have a guardian appointed or a power of attorney appointed for people over the age of 16. So children under 16 would not come under the Substitute Decisions Act with respect to guardianship or power of attorney. Last, I am going to pass this off to Mr Winninger in respect of pre-validated powers of attorney.
Ms Miller: Can I just pick up one of his points for a moment? I have used the example of children, but certainly the arguments apply to other individuals potentially involved in research as well, Alzheimer's patients and so forth. So I do not think it is as simple as to say it would only apply when they are over 16, because you still have the same problem for research with other populations.
Mr Wessenger: Except that the family member would be the person unless the person designates someone to play that role or, second, if the court had appointed a guardian, in which case certainly family members would be the preferential persons for appointing of guardians.
Ms Miller: Perhaps I have misunderstood the bill; thank you.
Mr Wessenger: Yes.
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The Chair: Ms Miller, on behalf of this committee I would like to thank you for taking the time out this morning in coming here and giving us your presentation.
Mrs Sullivan: Just on that point, if I could, while the next presenter is coming forward, this is not the first time the confusion about the paramountcy of the substitute decision-maker has come before the committee. If there is that much misunderstanding in the community by people who have examined the bill, God knows how much confusion there would be with people who have not had the opportunities we have had to examine the bill and who are going to have to live with it. Clearly there is an opportunity and an important point to be taken here in terms of redrafting. The bill is not clear.
Mr Wessenger: The law is a complex area. In many cases of law we have to have information booklets to explain that.
JUSTICE FOR CHILDREN AND YOUTH
The Chair: I would like to call forward our next presenters, from Justice for Children and Youth. Good morning. 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 of the caucuses. As soon as you are comfortable, could you please identify yourselves for the record and then proceed.
Mr Weagant: My name is Brian Weagant. I am the executive director of the Canadian Foundation for Children, Youth and the Law. I am accompanied this morning by Cheryl Milne and Sheena Scott, who are also lawyers with the foundation.
If you do not know anything about the foundation, it operates a clinic in Toronto, a legal clinic under the auspices of the Ontario Legal Aid Plan, called Justice for Children and Youth. It is staffed by four lawyers. We practise in the areas of criminal law, mental health law, education law and do work under the Child and Family Services Act. All the representation we provide is for youths who can be instructed, so generally our client group is between 12 and 17 or 18.
The board of directors and the members of the organization are -- in addition to lawyers, we draw on most areas of children's services. Not necessarily currently, but in the past few years we have had doctors, psychologists and social workers, all professionals who work with the group that is served by the lawyers in the clinic. The organization prides itself on being able to promote policy positions that are based directly on the experiences that the lawyers have from practising in the field. I would ask you to keep that in mind when you are looking through our brief. It seems that one of the more valuable things we can do for you is probably to answer concerns, but before we get to that it might be more helpful if Cheryl Milne summarizes our recommendations for you on the bill.
Ms Milne: I would like to begin by saying that most of the comments contained in our brief relate specifically to Bill 109. We have not directed any specific comments to the other two pieces of legislation, the Substitute Decisions Act and the Advocacy Act. One of the reasons is that for the most part those two pieces of legislation do not cover the age group we are most concerned with. I think that leads to some confusion in some areas, specifically with the Advocacy Act and what the mechanism is for appointing advocates for the age group of our clients.
The proposed Consent to Treatment Act will have serious implications for all our clients, and especially for those who are living independently. For example, recently Justice for Children and Youth has acted for a pregnant 15-year-old living in secure custody, given advice regarding a 12-year-old girl who thought she was pregnant and assisted a 15-year-old in need of dental work after her parents had kicked her out of their home. Another 15-year-old client of Justice for Children and Youth sought medical treatment for bruises and swelling caused by an assault on her by her mother. As she was about to turn 16 and was living with friends, and therefore was out of immediate danger, the child welfare authorities refused to get involved. All these clients would be adversely affected by the legislation proposed under Bill 109.
What I am going to do is just summarize some of the points in our brief. The last two pages of the brief set out a summary of our recommendations. You can either follow that or try to follow me as I go through the brief.
The current situation is one in which the common law applies to our clients, and the common law generally has acknowledged that minors gradually acquire rights as they grow older and become capable of discernment. The few cases decided in Canada on the issue of consent to medical treatment have clearly held that a minor may consent to medical treatment if he or she has sufficient intelligence to understand the particular treatment in question.
The fact that a patient is a minor should possibly alert the physician to clearly scrutinize his or her intelligence and maturity, but should not act as a bar to independent decision-making. Unfortunately few health care professionals know the common law, in our experience, and many deny services to young people on the assumption that the law is more rigid than it is. There are also, unfortunately, those who make such decisions based on who is more likely to sue them than on who they are facing in terms of who the patient is.
The current situation can lead to uncertainty in the treatment of youth. For example, a 13-year-old in secure custody under the Young Offenders Act is deemed to have the capacity to consent to treatment provided in that facility. However, the same person would not have that power if he or she were within a secure treatment facility under the Mental Health Act. Similarly a person under 16 can consent to certain surgical procedures if performed in a doctor's office or medical clinic, but would not have the ability to consent to the same procedures if conducted in a public hospital.
Another example is the difficulties high school students have in obtaining counselling from school social workers because school board policies often require prior parental consent. This consent is not required for counselling by social workers under the Child and Family Services Act or at common law.
The present situation is really not satisfactory. However, the legislation provides specific age limits in an effort to make things more certain. It is our position that in fact it makes things worse for our clients. The danger in using arbitrary ages and a negative presumption below those ages is that health practitioners may use them as rigid cutoff points without properly determining the young person's actual capacity. There seems to be no logical basis for presuming that a young person under 16 does not have the intellectual capacity to give informed consent. The studies demonstrate the contrary. A health professional should approach minors with no presumptions whatsoever, and only in this way will health care providers be sure of taking the additional step of inquiry into the actual capacity of the young people seeking assistance.
We submit that the common law position is preferable to fixing the age of consent at some arbitrary age with a rebuttable presumption below it. Artificially fixing an age of consent or an age of presumption fixes too rigid a cutoff point for access to health care. To point out that different children mature at different rates is stating the obvious. It is because of the great variety in the rate of development of human intellectual and personal maturity that we feel it is important that the common law rule of informed consent should be maintained and clarified, regardless of age.
Setting that aside, however, we must acknowledge that under the present system many health practitioners are denying treatment to young persons without parental consent because of a lack of knowledge about the common law rules. This situation has been documented in studies involving doctors in the Toronto area.
Denial of services to young people as a result of consent requirements may be avoided by specifying the new age limit as 12 rather than 16. So our first recommendation is that a person who is 12 years of age or more should be presumed to be capable with respect to the treatment, but that presumption may be rebutted.
Our second recommendation deals with the issue of confidentiality. By setting the age at 12, we are not suggesting adolescents should make these decisions on their own without adult consultation. However, this should not be a condition of obtaining treatment where the young person is clearly capable of making a decision. Should the young person decide not to tell his or her parent, the discussions with the health practitioner should be protected as confidential communications subject only to the duty of health practitioners under specific legislation to report suspected child abuse. That is the Child and Family Services Act.
Our second recommendation deals specifically with clarifying that point so that, regardless of whether the person under 16 chooses to involve his or her parent, and even if the health practitioner determines that the person does not have the capacity to consent to treatment, patient confidentiality should be maintained subject only to the obligations imposed by law.
Another issue that comes under the legislation is the definition of "health practitioner" and "treatment." Under the proposed legislation, "health practitioner" is defined as those professionals listed in the appendix to the act. The list, in one sense, could be seen as being too broad and somewhat illogical and in another sense too narrow.
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It is our view that if you assume the age for presumed capacity to consent is 12, then definition of "health practitioner" should be broad so that therapists and social workers in a variety of settings are covered within the legislation. It should also be clear that services which are purely educational in nature should be specifically excluded under any broad definition of "treatment."
I am going to skip through some of our recommendations. I think you can follow through them. I am not going to point to all of them specifically.
Another issue that I think is linked to the confidentiality issue, but also to the ability for the young person to go to more than one health practitioner for an opinion, is that the legislation is unclear as to whether a person can merely seek another opinion upon learning that his or her practitioner has decided that he or she is incapable. It is our position that the act should provide that the minor be informed that one refusal to treat does not constitute an absolute ban to treatment should the minor be unwilling or unable to seek parental consent. This may assist a young person who has been refused treatment by a health care provider who is also loath to treat any particular minor or who considers all minors incapable of giving informed consent. That has certainly been part of our experience, that there are some health practitioners out there who will not treat young people for various reasons.
It is hoped that a conscientious health professional will explain the refusal, but should he or she fail to do so, the statute would require that the grounds for the refusal to treat be provided. If the minor feels strongly that he or she has the requisite capacity to give valid consent, the young person should be able to seek a second opinion elsewhere.
Another issue is who will consent. Consent to treatment on behalf of a young person under 16 or any person found not to be capable by the health practitioner can be made by that person's parent or other relative, as long as that person has had contact with him or her within the last 12 months. The time period allotted appears much too long. Many of our clients who are living independently of their parents may have ceased contact a relatively short time previous to the need for treatment. However, the contact they have had with their parents may have been highly conflictual. For example, a pregnant teenager recently forced to live independently of her father was told by him that he wanted contact with her only because he wanted contact with the grandchild. He had thrown her out of the house. Should this man be given the power to consent to treatment on behalf of his daughter through her pregnancy?
Recommendation 10 is that the relative empowered to give substitute consent on behalf of a person should have had contact with that person, we say, within the last three months, and there should be a mechanism within which the Consent and Capacity Review Board can review the nature of the contact between the parties so that if it is characterized by conflict, that can be taken into consideration when looking at their decision.
Respecting the review board composition, the members of the Consent and Capacity Review Board are to be appointed by the Lieutenant Governor in Council. There are no guidelines, except as to numbers, in the requirement that one person have expertise in determining capacity for the composition of the board. In contrast, the Mental Health Act will continue to specify that the board appointed pursuant to that legislation will be composed of a lawyer, psychiatrist and layperson.
Given that the capacity to consent relates to a specific treatment, at least one member of the board should have expertise in such treatment. Furthermore, there should be diversity among the members of the board so that it is not composed of, for example, all doctors. Finally, and most important, if the review board is to determine the capacity of a child or adolescent, the board should consist of members who have experience with that age group.
The implications of this legislation are also that there are going to have to be other amendments to the Child and Family Services Act to keep it in line. If our position with respect to age applies, then I think the regulations under the Public Hospitals Act also have to be looked at, where 16 is an age with respect to surgical treatment. If your intention is to try to organize things in a way so that doctors know exactly where they stand, I think all these other pieces of legislation have to be looked at, because right now with young people under 18 there are different rules for different ages and different types of treatment and it is quite a maze. We would recommend that those other pieces of legislation also be specifically looked at.
I have gone fairly quickly through the brief and just sort of pointed out the highlights. Our main issue, I have to say, is probably the age issue and the fact that the common-law position where the doctor looks at the patient, or the health practitioner looks at the person in front of him as an individual is the preferable route. But if you are going to set up a system of presumptions, we think that 12 is an age you can actually justify. It is an age that is established under the Young Offenders Act for someone who has the power to instruct a counsel. There certainly is a lot to support 12 as an age for a presumption, so there would be a positive presumption in favour of capacity above that age.
I think it also helps doctors or other health practitioners in giving them some certainty as to how to deal with someone who is 15 and standing in front of them, rather than have a situation where it is left open with just the common law. There certainly have been a lot of problems with this age group in terms of health practitioners refusing to provide them with treatment because of uncertainty as to how they should deal with them and what the parent's role is in the whole situation.
Sheena Scott is going to talk about some of the proposed changes that have been put forth by the Conservatives to the bill and what our opinions are in respect to those specific changes.
Ms Scott: Before I get into that, I want to talk a bit about rights advice under the legislation. Under the proposed legislation, if you are 16 or over you automatically get advised of your rights but if you are under 16 you have to assert the desire to make your own decision before you are told the presumption is rebuttable. This is clearly unfair. How we can expect a 12-year-old going into the doctor's office to know the mechanism of the legislation and to have basically the guts to say to the doctor, "Hey, wait a minute; I really feel I'm competent and I can make this decision to have my acne treated," it seems to me is one of the flaws in terms of making an age of distinction. Even if we do reduce the age to 12, we would suggest that all people must automatically get rights advice and that it should not be left up to the child to make an assertion that he wants to make the decision himself. It just will not happen.
Also, the other point I wanted to address was with respect to clause 17(b) of the act, which states that if a parent is going to be making a decision on behalf of a child, he or she must indicate that he or she has no reason to believe the incapable person might object to him or her making the decision to give or refuse consent. With most of our clients there has been some kind of conflict with the parent: sexual abuse, physical abuse, dispute over the rules of the household, that type of thing. Often, particularly in the sexual abuse cases, the perpetrator is denying the abuse, so he might, in good conscience, or in his own good conscience, make that statement under clause 17(b): "I don't know why they wouldn't want me to consent to this abortion, because there's nothing wrong. I didn't do anything." Would the health practitioner be bound to accept that consent in those circumstances? Hopefully not, but there is no mechanism to look into the conflict or the relationship between the parties, and I think that highlights one of the recommendations Cheryl mentioned.
We have before us some amendments proposed by the Conservatives. One was that the definition of "treatment" be somewhat narrowed to exclude prescribed things or the provision of information. We agree with this amendment. We think it would be very difficult and impractical for the person behind the counter at the drugstore to have to make a determination of someone's capacity if someone goes and hands him a prescription. We hope this amendment is designed to deal with that by excluding prescribed things from the definition of "treatment." Also, with respect to the provision of information, clearly public health nurses and other professionals who go around to schools and speak should not have to assess the capacity of every individual in the class to provide them with information. We feel this narrowing of the definition would be beneficial.
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The one thing we do have concerns with about the overall definition in the legislation is the word "cosmetic." Is getting your ear pierced cosmetic? That is unclear. For that reason we do agree with the Conservatives' other recommendation that the Lieutenant Governor have regulation-making power in terms of what does not constitute treatment.
Finally, the Conservatives have also recommended that section 8 of the bill be struck out and the following substituted, "A person is presumed to be capable to consent to treatment if he or she is capable of understanding the nature, purpose and consequences of the treatment." This is essentially the common law. Cheryl has already addressed our views on the common law and that in the ideal world it would be the preferred solution, but unfortunately these decisions become very subjective and discretionary under the common law.
The other problem with it is that the Conservatives have made no mention of when the rights advice will kick in if their recommendations are implemented. Does this mean only those 16 and over get rights advice? That is an anomaly that will have to be addressed.
Mrs Sullivan: You have raised a lot of issues relating to the age provisions and the Minister of Health, in her first presentation, indicated to the committee that there would be changes. Certainly we have much concern about the mature minor who has the capacity to consent to certain treatments, and I think now there is all-party agreement that there should be changes. We had hoped there would be amendments brought forward during the course of this discussion so that people would be able to look at them and so that we would indeed be having public consultation based on what in fact the government will really be considering.
You raise issues in relationship to the Child and Family Services Act and other issues, the blanket authorities to CASs. The question that comes up is collecting of evidence for incest victims. Those are questions where far greater discussion over the course of this age issue is going to have to come into play. We do not really have an awful lot of time to go into those things now, but we have asked, through the parliamentary assistant to the Minister of Health, for additional work to be presented to the committee in relationship to some of the consent issues for wards and so on. We hope that will come forward and that many of the issues you have raised in terms of age will be dealt with in an appropriate way, and also that there will be additional public consultation in relationship to what the final amendments and final proposals from government are. So far that has been refused, but we will keep fighting.
Mr Sterling: Thank you very much for your support for our amendments. Early on in these hearings, as soon as we had heard three or four groups, we thought a more logical way to approach this would be to advise subsequent groups that we had made a determination that there was a problem. Let's work together to fix it and not have everybody lashing out at provisions where there was already a sort of consensus that there was a major problem. With regard to the interesting question you raise, at what age an individual is entitled to advocate services, are you suggesting that while the common-law definition is good, there should be a cutoff age when a child is not entitled to advocate services?
Mr Weagant: We understand the problems with drafting legislation in order to cut out some people but not others. In an ideal world we would say there should be no need for legislation and that all decisions around consent should be made by a determination of competency. We know the world does not work that way and that most decisions about competency are truly motivated by who is in a better position to sue and whether the patient agrees with the treatment being offered. That is our experience. That being the case, there has to be some compromise position if you are going to try to codify it.
At this point in time, given that the proposal is 16, we think the most progressive way to satisfy our concerns and the government's concerns would be to cut it off at 12. We do not think we are tossing away that many competent people under that age who would need a triggering mechanism. If indeed those kids exist, they can come for our services. In the last few years we represented two kids who, at 11 and 13, were at Queen's University. Surely for their problems, when they came up, we could have taken them forward. We are suggesting that a safe cutoff, if you have to have one in order to ensure integrity in the system, may be 12 for the triggering mechanism. It does not mean persons under that age should not be entitled to seek help on the question or that they could prove capacity if need be.
Mr Sterling: Okay. This question has been posed to us: An eight-year-old walks in to the dentist's with his mother and the eight-year-old says, "No way I'm climbing into the chair." The mother says, "Johnny, you're getting in that chair." What happens then? He is clearly saying no. What are you suggesting? Are you suggesting he should have a right of access to an advocate, or do you think there should be some age where the parents are deemed to be the advocate for the child?
Mr Weagant: As a practical matter, what happens now?
Mr Sterling: He gets in the chair.
Mr Weagant: You do not think that is going to continue?
Mr J. Wilson: All the dentists tell us it may not.
Mr Sterling: Yes.
Mr Weagant: It seems to me to be a bit of guerrilla warfare when they are giving you submissions. Are they saying as a group they will now, after all these years of deciding that kid was incompetent, decide that kid is now suddenly competent and that is why this legislation should fail? I find that hard to believe as a practical matter, that this is how the world is going to work after this comes in.
Mr Sterling: No, but we are dealing with legislation, with legal rights, with liability issues etc.
Mr Weagant: Yes, lawsuits, insurance.
Ms Scott: Whether or not he gets into the chair is not the issue. The issue is, is he competent to make that decision whether or not he gets into the chair? The dentist still has the power to make that determination, and if he feels the child is not competent, based on the child's age and intelligence and whatever test may be prescribed under the legislation, then he has the right to make that determination that the child is not competent to make that decision and to rely on the parents' decision. The question of whether or not he gets into the chair is a red herring.
Mr Sterling: No. If the child is not competent, then he has to call in the advocate, according to the legislation.
Ms Milne: An example of how that is actually coming into practice at present is with the Hospital for Sick Children, where kids are brought in with respect to mental health care. Even though they are not legally bound to provide these children with legal advice, as a practical matter they let them know they have the right to a lawyer. They are being brought in by their parents, probably through some coercion, but they are there and they are given the advice. Very rarely do they actually take that opportunity to obtain a lawyer and fight it. We have had three calls in the last 10 months.
Mr Sterling: Yes, but you are mixing apples and oranges here. You are confusing the issue with a very serious health problem when you are dealing with what we would describe as a maintenance health problem.
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Mr Wessenger: There are just a couple of points I would like to raise. First of all with respect to the matter of age, you indicate in your presentation that your preference is for no age and for having the common law, and then your recommendation is setting the age. I should tell you before you answer this that generally the advice we have been receiving from health practitioners and people in the field is that they prefer the common-law approach. If you had your choice, would you prefer the common-law approach with health practitioners, assuming there is an educational process, or do you prefer age 12?
Ms Milne: The ideal situation, the perfect world situation, is where we have the common law, so that each health practitioner approaches each person as an individual and makes the assessment as to whether or not he has capacity, based on the rules.
However, it has been our experience that when a health practitioner is faced with an adolescent the rules change. It is very difficult for that young person, despite how mature he or she may be and the fact that he or she can understand the procedure, especially when it gets into sensitive areas such as abortion and pregnancy and those areas. We have certainly had the experience where doctors have said to our clients: "I have to call your parents. You're only 15." It is clearly not true, but that is what has been happening. Therefore, we have said that if you at least put a presumption at a certain age, there is some certainty, so you are more likely to have a health practitioner treat that adolescent based on the presumption.
I do not think we are going to get that ideal world. People have been talking about the problem about the lack of knowledge health practitioners have about how to test capacity for this adolescent group. We did a brief in 1980 on the same issue, and it is still happening. We are not that confident that the education process is going to suddenly, miraculously change things for our clients, so we are willing to put a cutoff point for a presumption. It means that the test still has to apply, and that presumption could be rebutted by the health practitioner who is faced with a 12-year-old who he does not think really understands the nature of the treatment.
Mr Wessenger: My second question is with respect to your recommendation with respect to social workers and therapists. I was wondering why you would really want them included under this situation, because what they would be doing generally would not be a treatment at all. That is why I was curious what the advantage of including them would be.
Ms Milne: Why would you include psychologists and not other forms of therapists? You either go broad and allow more people to be included under the act or you narrow it down. Right now there does not seem to be much rhyme or reason to the definition of "health practitioner." You cover some people who provide therapy and some who do not. Right now we still have the same problem where social workers are saying: "I have to call your parent, because we're not necessarily under the CFSA. We are within the school board, so we can't even counsel you as a school guidance counsellor without calling your parent."
Mr Wessenger: I just do not understand on what legal basis they do that, because it would seem the common law would apply to them as well, unless there is any legislative, and I am not aware of any legislative --
Ms Milne: That is what we would say, but I think that to provide more certainty to that group, they should be included as well.
Mr Wessenger: So really you are just concerned about people not following the common law again in this instance?
Ms Milne: I think that has been one of our biggest issues.
Mr Wessenger: I have one more question I would like to ask.
The Chair: Thank you, Mr Wessenger. That is it.
Mr Wessenger: No, I think this is an important question.
The Chair: No. Thank you, Mr Wessenger. Mr Weagant, Ms Milne and Ms Scott, on behalf of this committee I would like to thank you for taking the time out this morning and coming here and giving your presentation.
PATIENTS' RIGHTS ASSOCIATION
The Chair: I would like to call forward our next presenters, from the Patients' Rights Association. Good morning. I just remind you that you will be given a half-hour for your presentation.
Mrs Coy: We have made it brief.
The Chair: 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.
Mrs Coy: Very good.
The Chair: As soon as you are comfortable, could you please identify yourself for the record and then proceed.
Mrs Coy: My name is Anne Coy. I am the president and co-founder of the Patients' Rights Association. Why did I get involved in this, I keep asking myself. Simply because, as we say in our presentation, if you have been there, you can talk about it.
My husband was a victim of an improperly prescribed medication, and I did not even know where to go with a complaint about that. A neighbour said, "Why don't you go to the College of Physicians and Surgeons?" I did not know what CPSO was. So we feel strongly that there has to be something in the legislation that is going to educate the public about how to handle things.
You will notice in our presentation, which I do not intend to read to you, that we are concentrating on two aspects of our work. One is advocacy, with which we have a considerable amount of experience, and Harry will speak to you about consent. If, at the time we as a family were in trouble, there had been an advocate about who could have explained to me that it was all right to ask questions and to criticize treatment, my husband might still be alive and I would not be here. But I thought since nothing was going to be done to prevent the avoidable medical accident from happening to someone else, if we are not going to be protected as the public and as patients -- and we are all potential patients -- by the regulatory bodies, therefore we have to do something to protect ourselves.
I was surprised to find, when I was involved with the government's review of the Public Hospitals Act, that we had to fight hard to establish the fact that a patient is a stakeholder in the health care system. You would be surprised at the amount of time we had to take to talk about the role of an advocate, because it is seen as adversarial, and it certainly should not be. This is why we concentrate on the importance of the Advocacy Act.
Get rid of the idea we are there to fight the system. We are there to help to accomplish the highest possible level of health care. We were naïve enough to assume we all had the same goal, providers and patients alike. I asked the committee during the review of the Public Hospitals Act if they were against the concept of advocacy or the word "advocacy." I do not know what you can substitute for "advocate." I know in the legal sense it is an adversarial system, but not in the sense of speaking for someone who is vulnerable, and we are all vulnerable if we are ill. We are intimidated by illness and we can be intimidated by the system. So this comes as a very pleasant surprise to us. As it tells you in here, I was on Father Sean O'Sullivan's consumer advisory committee and felt pleased to be asked to give an opinion as a user of the system. We were quite pleased to see his act go in and we are hoping it is going to go ahead.
The idea of advocacy, even though we have been volunteering for 18 years, is really too important to be left completely to volunteers. The majority of people do not know that we are around or that we are available. Maybe that is good, because we would not be able to handle the workload if they did. We have reached the point now where we are not seen as enemies or in opposition to the giving of health care. This is witnessed by the fact that we are able to come and speak to a committee such as this, or that we would be asked to take part in a review of the Public Hospitals Act, or that we would be asked to do many of the things we have done.
We have outlined here, for those of you who do not know about us, what our goals are and how we are going about trying to accomplish those goals. We point out to you the amount of work we have done voluntarily since 1974. We have had a physician on our board. We have a lawyer on our board. We have a nurse on our board. So we have input from the providers of care.
On page 2 of our submission, towards the bottom, we point out how important it is to ensure consumer control of the direction of the advocacy system. Once you have been in this position you know how important it is to have someone who at least can promote self-advocacy, even give you the assurance that you are entitled to speak for yourself, which is the best kind of advocacy, if the person can do that. In our society we have so many citizens who do not have English as their first language and they cannot put their complaint on paper. There are a lot of people who have English as a first language who cannot do that. They could tell you what the problem is. In discussing the problem, they may find there really is not one, once someone takes the time to explain it to them. That is a function of an advocate, too, I would think, to clarify a situation.
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We do a lot of just talking to people. The majority of our cases now are dealt with by the complainant himself or herself. We got involved actively at first by taking part because we were not sure ourselves what the system was. We have appeared before the Health Disciplines Board and we have written letters for people. Now we advise people how they could write their own letter. If we find that it would be an impossible chore for them to do so -- you know, let's not write 20 pages and still not say what the problem is. Let's not use certain words like "murder" and what have you. If we find they cannot do it themselves we would draft a letter, either for their signature or actually write it on our letterhead, as a third party who is intervening.
We point out on page 3 the factors, or the qualifications perhaps, an advocate should have. An advocate must be free to use judgement. Therefore, it should be known that this person is capable of using good judgement, because you are advising someone else. We are not for the best interests approach: "I know what is best for you. This is what you should do." We find out what the person wants to accomplish, how he requires the help to accomplish this, and we see this happening if the Advocacy Act gets in place. I understand there is a lot of resistance to it, but it is improving. I did not think it was going to take 18 years to get to the point where I can say we are not enemies of the people.
There also has to be the ability to communicate and to understand communication, because you have to be able to assess whether the person you are advising is capable of understanding your advice, the system and what you are saying, and whether he is able to proceed on his own. You have to avoid at all costs telling the person what to do. The person tells you what he would like you to do. We cannot take away the independence of the individual. We sort of encourage independence. It is surprising how courageous people will become if they know they are not on thin ice, "Are we allowed to question what is happening, what is being proposed?" Very important decisions have to be made involving life and death in the health care system and I guess none of us can avoid being vulnerable at some time or another.
Perhaps we can pass it over to Harry now to talk about our views on consent.
Mr Beatty: I am going to address particularly -- it begins on page 4 of our brief -- sections 4 and 5 of Bill 109, which set out the general law of consent.
Most of the bill and most of the public debate has centred on incapacity. We thought we would focus a little bit on the general law of consent and the status of actual practises around consent where there is no issue of incapacity, where the patient is a competent adult and that is not being questioned. Even in those circumstances, the practices as to consent in Ontario's health care system fall far short of what is theoretically the legal standard, as set out in subsection 5(1) of the bill that, "The consent must relate to the particular treatment, ...must be informed and ...must be given voluntarily."
Many examples have come to our association's attention. When I say "our association," it is really to Anne Coy's attention, because although Anne has been a volunteer all these years, she has put in a workload, as many volunteers do, far beyond what paid employees do. Anne has talked to literally hundreds, perhaps thousands, of consumers in Ontario's health care system over almost two decades.
Some of the things people tell us are just common experiences you would be aware of. Some people are asked to sign general consent forms on admission to hospital before they know what their diagnosis is, or what treatment is proposed. They are just very general blanket consent forms. In law, they are not consents to anything. That consents are obtained in this manner really gives people the impression that consent is much different than it really is. While consent forms are supposed to be signed voluntarily, we have had examples reported to us of consent forms being presented to patients under sedation, sometimes in the operating room itself.
If people want to make changes, like a few examples of people who had some problems with being involved in teaching in teaching hospitals, clearly changes are not regarded as acceptable. Anne has dealt with some cases where parents -- I think the cases dealt with have been mothers -- have been told that they will be reported to the children's aid society if they do not consent to treatment for themselves.
Mrs Coy: One was for herself, the other was for her child.
Mr Beatty: There is usually nothing about the risks of the proposed treatment or procedure, although some hospitals, with regard to specific procedures, have done a very good job of developing information sheets, but often people know next to nothing about the risks, and of course it is very unusual for people even to be given a copy of the consent form they have signed.
Drugs with significant risks are often prescribed on the basis of an implied consent. There is really no full explanation of what to look for in terms of risks or what to watch out for in terms of side-effects. There are also concerns about delegation where consent is obtained by someone other than the person who is actually providing the treatment.
Our recommendations concerning sections 4 and 5 are that while "informed" is defined or explained, there is no definition of "voluntariness." We believe there should be one, to make it clear that any kind of duress invalidates the consent. Subsection 5(3) just says, "Consent to treatment may be express or implied." We believe there should be, perhaps by regulation, a requirement that for certain classes of procedures there must be a written consent. We also recommend standardized consent forms or, failing that, at least some legislated guidelines as to what can or cannot be on a consent form.
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A few years ago we reviewed some consent forms that people sent us from various Ontario hospitals and found all sorts of provisions that were very questionable in terms of the law, the chief one maybe being the generality in some of the consents. There should be an onus on health care practitioners to prove they have obtained a voluntary informed consent if an issue arises.
Finally, as we have said many times over the years, we believe consumer complaints in the health care field should be heard by an independent, impartial body rather than the self-regulating professions.
A system based on truly voluntary and informed consent is clearly much different than the system we have now, where consent is not taken all that seriously. I think we have to recognize that we are not going to have the system envisaged by these bills operating effectively overnight. It is very different. It is going to require a great deal of education of both providers and consumers.
The position of our association, like that of other organizations in the Ontario Advocacy Coalition, is that the advocacy system has to be in place before you bring in the other bills, or at least before you make the other bills fully operational. Even then a lot of work has to be done on finding some way to phase in these new legislative systems.
In an ideal world, people who are not capable of making their own decisions should have a substitute decision-maker identified. Those of us not currently considered incapable should have personal powers of attorney so that it is clear where people should go in the event that we are in an accident or something of this kind. In practice, that has not happened yet, and to move towards that kind of system, a more rational system that makes sense, is going to take a good number of years.
Without going into the specifics, we would support reasonable compromises to target advocacy resources at those most in need during the first years of the new legislation. It has been about 25 years, I think, since the first guardianship committees were appointed by the provincial government to revise the Mental Incompetency Act, so this has been a very long debate. I served on the first committee, chaired by Steve Fram, and for some time on the second -- I think we were appointed in 1983 -- and these issues were certainly part of deliberations about these issues before that time. So the issues are not easy, and a lot of this will take some getting used to, but I think consideration has to be given to finding ways to phase this in.
Without giving an exhaustive list of the criteria, they should take account of the seriousness of the procedure and whether there are special considerations that make a person vulnerable. If the system were just sort of implemented in full on January 1 of some year, it would basically require that advocates get in touch with every vulnerable person in the province pretty well during the first number of months, and clearly that is not possible.
But in principle, while some amendments should be made, the association supports these bills as the direction that should be taken in this area over the next number of years.
The Chair: Thank you. We have time for one brief question or comment from each caucus.
Mrs Sullivan: I think it is a shame we have so little time, because we have a lot of respect for the work that groups such as your own do. I think in terms of my question, I would like to go to Mrs Coy, who was a member of the O'Sullivan committee. I am going to ask, given the report of that committee, if you were surprised that the legislation did not include some of the proposals included in that report about the duty to report abuse and neglect, such as the examples that were given from the jurisdictions of Minnesota and Nova Scotia. We have had other testimony that indicated that might be an appropriate way to go, and exists in children's services. I just wondered if you were surprised that was left out.
Mrs Coy: No, I was not. I was disappointed at the time that consideration was not given to those of us who become temporarily vulnerable. He did not deal with children, with the vulnerability of the child; his mandate did not include that. I was not surprised. The duty to report --
Mrs Sullivan: The duty of care givers to report abuse in a situation: That was one of the things included in the O'Sullivan report that is not included in the legislative proposals that deal with vulnerable people in society. It seems to me that is a very simple and useful change that could have occurred.
Mrs Coy: I think that was discussed by several groups in the proposals that came out of the Health Professions Legislation Review, that there should be a duty to report, on the part of the provider of care, any abusive situations or any harm that was being done even in the provision of care. I realize that is being objected to quite strongly. I think Dr Boadway from the Ontario Medical Association calls it the snitch law. We do not always consider a duty to report as snitching, I do not think.
Mr J. Wilson: Thank you for your presentation. Just very briefly, in your written text you talk about accountability for health care practitioners. What about accountability for advocates? As I read the acts, there is not much, if anything, in there.
Mrs Coy: I think the advocate basically must be accountable to the person being represented. We call them clients, which is not a very good word. There must be accountability, of course, because you realize when people come to you with a problem, you can be held responsible if things go wrong as a result of someone taking your advice. So it definitely has to be there. I guess we mention that an advocate must indeed be capable of showing good judgement.
Mr Beatty: I would also strongly support accountability for advocates. If an advocate goes off the rails, it can become part of the problem for an individual. There is nothing to guarantee that advocates are going to be perfect, and advocacy programs and so on should have a complaints procedure available and all the other kinds of consumer remedies just like every other kind of program.
Mrs Carter: I would like to thank you for your understanding and support of what we are trying to do in Bill 74. I believe it is set up to maximize consumer control, so I think we are with you on that point, but there are two questions I would like to ask you.
On page 3 of your presentation you raise the question of non-directed advocacy. As far as the act goes now, the advocate is confined to ascertaining the wishes of the vulnerable person and acting on those, so if the person cannot express any wishes, then presumably the advocate is powerless. We have the situation where a person is obviously being abused but cannot express any wishes. I wonder how you would like to see reactions to that kind of situation being incorporated into the act.
I would also like to know what you feel an advocate should do in a situation where a person who is capable of expressing wishes is saying the abuse he may be subjected to, or neglect or whatever, should go unreported. What should the advocate do in that situation?
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Mrs Coy: I did not hear the end of that question.
Ms Carter: If a person is capable but requests the advocate not to report abuse or neglect or other problems, what should the advocate do in that situation?
Mrs Coy: If the advocate is going to be taking direction from the individual, and we are talking now about the user of the system rather than the provider of care, he or she cannot overrule -- otherwise, you would not be speaking for that person if you imposed your own ideas.
Mr Carter: Right.
Mrs Coy: In the 18 years that I have been doing this on a voluntary basis I have had to learn from scratch how to do it, but I knew what I would have liked when I needed help. I have not come upon the things you suggest. Most people who come to us do not come in the spirit of revenge. They had the same feeling I had: Can we keep this accident from happening to someone else? It is quite altruistic, I think, that they take the trouble to go through the process, because it is a harassing process. If there are pitfalls in what they want to do, then I think it is up to the advocate to point that out.
One man was complaining about the care provided to his wife, who had died. It was the only case, really, that I had to turn down in all those years, and I did not exactly turn it down. He was in a place outside Toronto. In Toronto, if you do not like this doctor, you go next door and there is another one. He had a chronic heart condition, and I said, "Who is your doctor?" He said, "The same person." I said, "Are you thinking of changing doctors?" He said no, he was satisfied with this doctor. I said, "What do you think his reaction will be if you put in a complaint about him? Do you think you might find yourself in a position where he will say to you, `I do not want you as a patient any longer?' which is within his rights?" He had not seen that as a possibility, but he did not care.
The Chair: Ms Coy, Mr Beatty, on behalf of this committee, I would like to thank you for taking the time out this morning and giving us your presentation.
CASEY HOUSE HOSPICE
The Chair: I would like to call forward our next presenters, from Casey House. I 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, could you please identify yourself for the record and then proceed.
Mr Graydon: My name is Douglas Graydon. I am the coordinator of counselling services from Casey House. Frank Foley and Deborah Randall-Wood could not attend. They had planned to do that. I will be very brief.
Based on Casey House's limited experience of four years, we would like to share some concerns about the legislation we are discussing. As outlined in the papers that have been circulated, we begin with Bill 108 around definitions of terms and the definition of the term "partner."
Our concern, based on our experience, is that if the validity of a partner relationship is dependent upon the recognition of others as to the primary importance of the relationship, then the potential for true conflict really does arise. Casey House believes that a partner relationship in terms of a same-sex relationship, for example, should be determined by the partners involved and not be dependent upon external recognition by others.
Also in that same bill, we have concern around the issues of research and how this legislation may limit AIDS research opportunities. One of the peculiarities of AIDS is that a person's capacity can fluctuate significantly from day to day. A person can be deemed capable of making decisions one day, and several hours later, not. So we are wondering if some thought can be given to an appropriate mechanism, which while safeguarding a patient's rights and dignities, would allow for research in the relatively new field of AIDS.
Under Bill 109, the Consent to Treatment Act, comments worth noting are the definition of the word "treatment" and exactly what is meant by that. I believe you have been presented with this concern before, whether or not treatment includes investigation for treatment. If it precludes the opportunity to investigate until capacity to consent is determined, then significant limitations are placed upon a health practitioner in the case of an emergency. I am not talking necessarily about a critical emergency, but possibly one that can take place within 10 to 12 hours. I believe there are areas of the legislation that try to address that.
Section 8, presumption of capacity: I believe you had a presentation just a short while ago about the problems and concerns around the age limitation of 16, especially for young adults under the age of 16.
Section 9, definition of "prescribed criteria" and/or "procedures": Our feeling or our concern is that this statement does not clearly define what is meant by prescribed criteria or procedure, who or what body determines criteria or procedures and under what jurisdictional body this responsibility lies. There can be differences of opinion as to what is an acceptable procedure based on an institution's history and experience, so there can be differences from one place to another.
Finally, comments on Bill 74, the Advocacy Act: Clause 1(e), under the purposes of the act, makes reference to native or aboriginal Canadians as a specifically distinct group. We question whether there should be some reference to broadening that to include groups such as gay and lesbian groups or to incorporate some form of mechanism that allows specific communities to lobby for a designated status.
Under subsection 16(1), rights of entry for the advocate, our concern is that the right of entry should include, whenever possible, the consent of the vulnerable person whom the advocate is seeking to assist. If the vulnerable person does not want to see an advocate, does the vulnerable person have the right to refuse the advocate's entrance?
The final comment is on clause 24(3)(a), the advocate's access to records: The way we read it and understand it now, we wonder whether the physician's consent should be changed to the physician's knowledge. In this rewording, we believe it might preserve the vulnerable person's right to access to his own medical information. It also eliminates the possiblity where the advocate could be denied access to the vulnerable person's medical information.
Those are the comments and concerns we have. Thank you for your time.
Mrs Sullivan: Before I start the questions, I want to tell you how much I admire the work of Casey House. I have had friends who have used the services there, and the care and treatment they have obtained at Casey House has been quite extraordinary and loving. I just wanted to say that.
In asking questions about your presentation today, I particularly wanted to have you expand on concerns relating to advocates' access to records. We are all concerned, and there have been issues relating to confidentiality surrounding HIV patients. In the case of Bill 74, the advocate does have access to patient records, and certain limitations on disclosure other than in certain circumstances. I wonder if you believe that the circumstances included in the act for disclosure of patient records without the patient's explicit permission are appropriate, and indeed how that would affect the patients with whom Casey House particularly works.
Mr Graydon: I have to begin by saying that I am not that familiar with Bill 74. Deborah Randall-Wood was the one who did the research on that, so I really cannot say with absolute certainty whether the safeguards incorporated in that bill are sufficient.
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Mrs Sullivan: I am concerned that the advocate, in section 30, has the ability to disclose, without consent, information about a vulnerable person obtained from the clinical record to other people who work for the commission and to other people who work in a community program, and to any other person with the vulnerable person's consent. There are two subsections of that section where the vulnerable person's consent is not required.
Mr Graydon: I can only say that from our experience, I would assume that the advocate, in disclosing information, would be disclosing it to people who understand the need for confidentiality. However, that being said, we still continue to experience the situation where harm is done to the person when his HIV status is disclosed. So my assumption would be that Casey House would be deeply concerned that this type of information would be shared unnecessarily, and that there must be some kind of safeguard specific to, possibly, HIV-positive standing or status. We have experienced situations where people have shared that information with the assumption it was confidential, and it has not been kept confidential by professionals, and harm has been done to the vulnerable person.
Mrs Sullivan: I wonder if Casey House would look in particular at that section and perhaps submit another brief. I think it would be useful. I am quite concerned about it.
Mr J. Wilson: I know your colleagues were unable to appear, and it is good of you to take the questioning on their behalf. You have had an opportunity to see the Progressive Conservative amendments, have you?
Mr Graydon: Yes.
Mr J. Wilson: I hope you will look over the amendments. On page 2, dealing with Bill 109, I think we tend to agree with your recommendations on the definition of "treatment" and "presumption of capacity." I really do not have any specific questions. I think your brief is short and to the point. Mr Sterling may have a question.
Mr Sterling: On your concern about research, it has been a concern of, for instance, the Alzheimer society. The people involved in that were, and you are, involved in an illness which does not have the answers yet, and therefore the people suffering from it are grasping, often, at whatever is available. The section deals with people who are incapable. Now, is it your contention that those people who have lost their capability should be allowed to continue a treatment or be allowed to start a treatment during that period of incapacity? I am not that familiar with the stages. It probably affects people in a hundred or a thousand different ways.
Mr Graydon: The concern arises in relationship to AIDS-related dementia, where a person could be theoretically deemed incapable of making a decision, but for all intents and purposes from observation is acting as if he understands what is happening. The research we have tried to mount at Casey House has been fraught with difficulty, where we have consulted with the person, obtained his verbal consent, and returned within 24 hours for written consent to find him incapable of understanding to give consent. So it would not necessarily be for maintaining any kind of research once consent has been obtained, but for initiating research, and then possibly 24 hours later that same person could once again be able to give consent.
Mr Sterling: Let me put the burden on you in this way: How would you prevent the situation I think this section is designed probably more for, the situation when you are dealing with a concern about -- I think that medical ethics committees take care of this; I think it is there for this reason -- where you are not dealing with a disease like AIDS or Alzheimer's but something to do with the heart or whatever and there is an attempt to take advantage of a group of people who are not capable of making a decision and to convince them to participate in a research project which may have some detrimental affect on them. I think that is the way it is designed.
Mr Graydon: Which may have some detrimental affect?
Mr Sterling: To their health, their long-term health. How do you protect those people?
Mr Graydon: If there is some possibility of harm to the patient, then I imagine that he would need absolute protection at all times. What I am referring to is research that would be not deemed harmful and creating a mechanism where a decision-maker could give consent on their behalf. My own personal feeling is that if there is potential harm and they are incapable at that point in time, then they should be protected.
Mr Sterling: But is it not that in a lot of cases when you are into this experimental area, it really is not known if there are. I do not think you want to shut that off. If I were faced with a terminal disease and someone came in and said there was some prospect of some success with this, but there might be side-effects, I as a capable person would take that risk. That is your argument, is it not, part of your argument?
Mr Graydon: If a relationship existed between the person, between the power of attorney or the executor, if there was a relationship between him and the patient, where he felt he knew the will of the person, then I think that might be acceptable.
Mr Winninger: We had a University of Ottawa law professor, Cynthia Peterson, appear. You may know her. She asked that there be indicia of partnership included in the definition under Bill 108. She seemed to adopt the same point of view that you have, that it is not necessary that there be external recognition by others of partnership but that it would be helpful to add some indicia which would indicate whether or not a partnership might be defined to exist between two people. What do you think of that proposal?
Mr Graydon: First of all, you are going to have to define the term; I am not familiar with the term.
Mr Winninger: Indicia? Characteristics of a relationship. For example, you might have several potential partners all wanting to have an interest in a particular decision as a substitute for, say, an AIDS victim.
Mr Graydon: This would be in a situation where the relationship has not been clearly defined by the person?
Mr Winninger: By which person?
Mr Graydon: The theoretically incapable person.
Mr Winninger: Yes, exactly.
Mr Graydon: Then yes, I think I would have a tendency to agree with her, without understanding her full position, where there was some indication of characteristics of what we would deem a relationship.
Mr Winninger: There may be situations where same-sex partners live together in a traditional spousal relationship and then there may be more flexible arrangements that may require further definition in order that you minimize conflicts between family members and partners.
Mr Graydon: Yes, that would be an interesting exercise, because we certainly experience that at Casey House, where there could potentially be several partners. We try to identify the significant other, by gathering evidence from friends around the person to see who has got the most significant relationship at that point in time. In a sense, then, we are canvassing for other persons' recognition of the relationship when the patient is unable to identify his partner.
Mr Winninger: I see.
Mr Graydon: I suppose a definition with characteristics of a relationship would be useful.
The Chair: Reverend Graydon, on behalf of the committee I would like to thank you for taking the time out this morning and coming and giving us your presentation.
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ELIZABETH LEESON
JEANETTE DUFF
The Chair: I would like to call forward our next presenter, Elizabeth Leeson.
Mrs Leeson: My name is Elizabeth Leeson, and this lady is Mrs Jeanette Duff. I would like to thank the chairman and members of the committee.
Bill 8, the right to die with dignity: This is, in my opinion, a necessary and correct piece of legislation. Upon the death of my only child on September 6, 1981, I wrote my own desires for care and attention. It included my wish to be allowed death in a dignified way without the life-sustaining supports which are now used. My doctor was informed of this. I now carry in my personal belongings "A Right to Die With Dignity" form, signed and witnessed.
Each person must accept the responsibility for his or her own demise and make it known in a written or, if sufficiently lucid, a verbal way. Family members ought not to make the decision for the life-ending of another person; the emotional burden is too awesome. I agree entirely with Bill 8.
Bill 74, provision of advocacy services to vulnerable persons: I consider myself to be a vulnerable person as I am alone. Although not incapacitated, either mentally or physically, I have been isolated from my family. My husband died in 1955. We had one child, a beloved daughter, who as I have previously stated died in 1981. Three small children, my grandchildren, have been denied any contact with me, their maternal grandmother, from the day of their mother's death. The youngest child was killed at the age of four years. I now have two grandchildren who have not been permitted contact, although they are aware of my existence.
Times without number I have taken this man, my former son-in-law, to court hoping for an opportunity to be what I am, a grandmother to the only relatives I have in the world. They are my next of kin and my beneficiaries. Although an uneducated man, he has manipulated the justice system and made a mockery of both Brampton and Newmarket courts. He is not alone in his behaviour, and no matter how many judgements have been issued, he and his associates are determined that my grandchildren shall not have contact with me or I with them.
What they are afraid of I do not know, but every conceivable damage has been used against me: character assassination, harassing behaviour or whatever they can think up. A fist has even been pushed into my face. I may also add that my burial place has been taken away.
I spoke of this heartache in this legislative chamber in 1982 in the hope that someone would listen. In April 1983, amendment was made to family law which permitted anyone to apply for access to or custody of a child. Grandparents are not anyone; a maternal grandparent takes precedence after the father. Children who have experienced the death of a parent must have a mandatory, ongoing relationship with the grieving grandparents. This type of bonding is necessary for the healing process. It is entirely different from divorce. The emotions are not the same where two parents are alive. Death is final. The law must be amended immediately.
Since speaking out in 1982, many grandparents have lobbied in this building and spoken to committees regarding their wish to see their grandchildren, but their appeals have fallen upon deaf ears. The previous administration stonewalled us at every end and side and appeared uncaring of the magnitude of the situation. We had much support from the Conservative Party, which has continued to this day. The NDP, which was in opposition, was equally supportive. One member in particular, Mr Richard Johnston from Scarborough West, who is no longer in the House, had been kind and compassionate to me since I spoke here in 1982.
However, when the NDP formed the government, we began to hope for justice, but once again it appears we are a forgotten people. This is not a political issue, but denial of human justice. Several ministers in this present government of Ontario, including the Attorney General, have studied elder abuse. It is one thing taking part in a study but quite another when one is the victim. To us, it is cruel reality.
As a grandmother, I have the normal human capacity for caring. To deny me that right is to deprive me of a reason for living. It is cruel to me and to my grandchildren, an injustice which is unfortunately all too common and which has been perpetrated for generations. I am many years past my allotted span of threescore years and 10. I have come to terms with my mortality, but have not, and shall never, adjust to being deprived of sharing a fundamental love and relationship with my grandchildren.
On page 5 of a booklet issued by the office of seniors' affairs, entitled Elder Abuse, the Hidden Crime, it states, "To isolate the older person from other family members constitutes abuse." This is what I speak about. I am one of the abused. Since the government is aware of this situation, which covers every spectrum of society, the time is now and must be acted upon accordingly.
I now refer to Bill 74, and would like an answer regarding advocacy. Is it possible that an advocate's intervention will succeed where the justice system has been defied in uniting me with my grandchildren? Bill 74 is a welcome piece of legislation, but I wonder if it can be effective if not protected under the law.
If Bill 124 had been proclaimed, I personally would have been pleased. I have spent thousands of dollars and even after 10 years do not see or hear from my grandchildren. The person inflicting this heartache tells the court what it wants to hear, then does exactly as he pleases. Please tell me, committee, will the advocates have power to intercede upon my behalf?
From my grandchildren and myself, I wish to thank you.
Mrs Sullivan: I wonder if I could repeat the question asked in this brief from Mrs Leeson to Mrs Carter. Would Bill 74, the intervention of the advocate succeed "where the justice system has been defied in uniting me with my grandchildren"? Perhaps Mrs Carter could address that issue.
Ms Carter: Of course we do support families and that is specifically stated in Bill 74. As a grandparent myself, while I am lucky enough not to be in your situation, I certainly feel with you and know how I would feel if --
Mrs Leeson: I am sorry, but you have no idea how you would feel unless you are there.
Ms Carter: No, but maybe I have a ghost of it, shall we say? Obviously I cannot feel it fully. But I do not think you would count as a vulnerable person as envisioned in the act.
Mrs Leeson: According to this, I am extremely vulnerable -- elder abuse. Grandparents who are denied access to their grandchildren are classified as the top priority in elder abuse.
Ms Carter: I am not saying we should not help you through legislation.
Mrs Leeson: It is time somebody did, because 10 years is a long time.
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Ms Carter: But I do not think this act is the specific vehicle that would do that. Would counsel like to comment on that?
Ms Spinks: I think the act is to serve a wide range of vulnerable people. Certainly many of the elderly fall into the category of being vulnerable in certain circumstances in their lives. If they are experiencing a problem dealing with the system and if, in the view of the commission and the advocate, they meet that definition and are eligible for service, then of course the advocate would be supportive in helping them find the avenues to voice their concerns.
Mrs Leeson: What are you going to do about it? Are you going to write it into the law?
Ms Carter: I certainly hope we can but I think we shall have to look to doing it through a different avenue.
Mrs Leeson: They have been looking for 10 years. If I live another year I shall be 80. I shall not see my grandchildren; they are both under age. They are the only relatives I have in the whole world.
Ms Carter: I promise you I will follow this up.
Mrs Leeson: You have to follow it up because there are too many of us in this position.
Mr Sterling: I would like to thank you for your support of my Bill 8 dealing with --
Mrs Leeson: I support the bill. I am retired now, incidentally, and I have had it in my own family where many times I was helpless.
Mr Sterling: Thank you very much for your support of Bill 8, my private member's bill.
Mr Winninger: I take it you are trying to enforce your right to access to your grandchildren through the courts right now?
Mrs Leeson: I have been in court about 20 times and I can afford to go into court one more time and then I will have no money left at all. I am concerned about my grandchildren when I am no longer here, because they will have the guilt feelings of having abandoned their grandmother. My grandson is now 12.
Mr Winninger: When was the last time you saw your grandchildren?
Mrs Leeson: By court order at Newmarket court, the father was told that my grandson had to have two visits with me by the end of the year.
Mr Winninger: Which year?
Mrs Leeson: At the end of last year. The order was made on September 26. It came to December and I had not seen, heard or anything, so I contacted my lawyer and the father allowed my grandson to come and visit me. I had not seen him for six and a half years and the father's brother was with him. The father's brother was there for the two two-hour visits but would not allow my grandson to speak to me. The uncle was aggressive; he was hostile; he was nasty.
Mr Winninger: Have you seen the other grandchild?
Mrs Leeson: My other grandchild is now 19 and by law she could contact me, but with 10 years of indoctrination about this horrible grandmother who does not want her, she sent a letter at the instigation of her father to the court to say, "I don't want to see my grandmother."
Mr Winninger: Thank you for answering my questions so candidly.
The Chair: On behalf of this committee, I would like to thank you for taking the time out and coming and giving us your presentation.
Mrs Leeson: I wonder if Mrs Duff has something to say.
Mrs Duff: I just want to say one thing: I am very supportive of everything Mrs Leeson has said because I never thought I would see the day I would be in the same situation. You think: "Oh, isn't this great? I am going to grow up and I am going to have my children and then I am going to have my grandchildren I can enjoy." My case is not as bad as some others I have heard of. Some of them are really a little bit horrifying. You do not realize until you become a grandparent yourself the emotional and mental strain you go through.
Mrs Leeson: Incidentally, may I add that I cannot even be admitted to a hospital because I do not have a next of kin. When one is admitted to hospital we are asked, as a retired nurse, who is to be notified in case of emergency. I cannot do that because I have nobody -- absolutely nobody. But I have arranged with the undertaker that I can use his name. It may sound morbid to some people but to me it is reality.
I am depending on somebody to do something about grandparent access. I get angry every time I come into these committees and I feel as if I am being brushed aside like all the other grandparents, so start moving.
The Chair: Thank you for sharing these experiences with us today.
THE ADVOCATES' SOCIETY
The Chair: I would like to call forward our next presenters, from the Advocates' Society. Good morning. Just to remind you, 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, could you please identify yourself for the record and then proceed.
Ms Cronk: Thank you for the opportunity to address both yourself and members of the committee this morning. My name is Eleanore Cronk. I am vice-president of the Advocates' Society. I appear here this morning with Duncan Read, who is the executive director of the Advocates' Society here in Toronto, and Ray Colautti, a member of our board of directors from Windsor, Ontario.
Our comments will be initially, Mr Chairman, as you have invited us to do, very brief. They are intended to provide you with an overview of why we are here this morning and to outline for you both our support of the initiative this bill reflects and as well the suggestions we have, which we hope will be received in a way that will allow the bill to be improved before final passage.
I do not know how much you and your colleagues on the committee know about the Advocates' Society, so may I very briefly indicate who it is you are hearing from at the moment. The Advocates' Society is a province-wide organization of approximately 1,900 litigation lawyers in Ontario. The members of the society practise as legal advocates in every forum in the province, whether it be the courts or before administrative tribunals or any dispute resolution forum of any kind. About 60% of our members come from outside Toronto, from the northern reaches of the province and as well from the southern reaches of the province, and our headquarters of the board of directors is here in Toronto.
We from time to time appear before committees such as this and others like it to provide whatever suggestions we can as to ways in which to improve legislation or to address issues we as legal advocates contend with every day in the courts and before the various tribunals before which we appear. It is for that reason, because of our experience in that context, that we are before you today.
I said initially, and I would like to say again, that the Advocates' Society and its membership at large wishes to convey its unqualified and resounding endorsement of the initiative this legislation represents. We understand the need for, and applaud the effort to provide statutory protection for the vulnerable and to provide a mechanism in a statutory way for the protection of their interests and the advancement of their rights. That is the first message that, on behalf of our membership, I wish to communicate to you this morning.
In that context, however, there are a number of issues that have arisen for our members and for our clients, many of whom have written to us about this, that we wish to talk to you about this morning. We do so specifically with the hope that it will engender discussion among you as a committee so that we can offer our assistance, if that will be of value to you, to make improvements to the bill that we think will respond to the kinds of concerns that have been raised with us.
I am going to ask Mr Colautti to briefly outline for you the principal highlights of the issues we want to talk to you about this morning. We do so orally today with the hope that you will receive from us in approximately 10 days' time written submissions that outline in more detail the nature of the concerns that have been expressed to us and our suggestions as to how you might deal with them. If you would hear now from Mr Colautti, I would be grateful.
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Mr Colautti: There are three basic concerns we have and we put before you concerning the act as it is presently drafted. The first one concerns the function of an advocate under Bill 74. It is largely defined in various provisions under Bill 109, the Consent to Treatment Act, and Bill 108, the Substitute Decisions Act. The provisions in those acts, in very specific instances where there are certain applications being made that may affect the question of the competency of a person under review, empower and require an advocate to give advice to vulnerable persons which often involves fundamental rights of self-determination over the person's self and his or her property and often impinges on or involves matters that may be legal in nature. These are some of the most difficult questions that arise in the practice of law, sometimes, involving a person's competency. It can arise in a litigation context in a whole number of forums, and it is impossible to establish any generalized rules, because it goes on a case-by-case basis. Consequently, it is very important to appreciate fully and completely what the person's legal rights are and how those legal rights may be affected by the proceedings the person may be facing.
The legislation should therefore spell out in greater detail than it does now what the function of the advocate is going to be and the fundamentals of the training the advocate should have. The act as it is drafted now is silent as to the qualifications of the advocate. We are a bit uncomfortable with that. It is important that they be exposed to some professional knowledge and training. We are not necessarily suggesting, of course, that they have to have a law degree, but they have to have access to people who can give them the proper advice in situations that may arise. The qualifications and the background, therefore, of the advocate should be stated in the legislation in some fashion, and the qualifications and background to serve on the commission should also be indicated.
The second concern we have is rather a serious one, and it concerns the rights of entry conferred on advocates under sections 16 through to and including 23 of the act as it is drafted. There are two types of rights of access. One relates to facilities where a person is in a facility as it is defined in the act and another one is where he is in premises which very obviously includes a home. There is no reason why the advocate should not have access to the person when he or she is in the facility, but there may be reasons that are very difficult to ascertain at this time why there have to be limits on the right of access in a private home. The way the act is drafted now, it would be an automatic offence if the advocate, on producing credentials, is denied access to a home. There may be very good reasons why in a particular instance a person may be denied access to a private home. Rather than dealing with it after the fact in the context of a prosecution for denial of access, it should be dealt with up front, and we would suggest a different kind of mechanism than is presently proposed in the act.
The kind of mechanism that could be considered would be that if there is a request to access somebody who is in a private home and a denial, there should be a very summary and simple form of application to a court of competent jurisdiction. The Ontario Court (General Division) has particular expertise in the past in dealing with incompetency questions. An application should be made to a judge to gain access, on notice to all persons who may be affected. That way you do not have the creation of an automatic offence, and the court can balance the interests of all parties and make the proper order, in a very summary and quick fashion, to provide for the right of access; that is, would give a judicial scrutiny to this right of access to a private dwelling and would protect the individual family's right to privacy. That is a significant concern we have with the legislation.
The third concern we have is the use of the term "advocate" in the act. The O'Sullivan report very clearly spells out the definition of "advocate." One of the very first definitions it considers is the connotation in the public mind that "advocate" connotes somebody with legal training who presents briefs on behalf of clients before courts and administrative tribunals.
We have some concern with the use of that terminology as it exists in the act, and as the O'Sullivan report has suggested, what the act is really talking about is a type of social advocate. Even if that term were used, I think it would diminish in the minds of the public the confusion that exists. I can tell you, and Mr Read can comment on it personally, about the confusion. He gets a number of phone calls in any given week confusing our society with the kind of advocate proposed by this act. He gets a lot of questions from people who are looking for a social advocate and are calling the Advocates' Society. The confusion in the minds of the public is apparent.
Those are essentially our concerns, and we will detail them to you in a more detailed written brief in 10 days' time.
Ms Cronk: When I began my remarks, you may have noticed that in describing the Advocates' Society to you, I described us an organization of legal advocates. That is a term and a qualifier I am not used to using. I did so quite deliberately today to underscore the last point that Mr Colautti just made to you.
Quite literally, since the introduction of this legislation, our switchboard has been ringing off the wall. Because of the confusion created by the names, people who are familiar with the legislation believe that it is the Advocates' Society. We have done our best, in a non-delegated sense, to be good representatives of those introducing this legislation in fielding those calls, but I tell you as a fact that the confusion is there. That is why I referred to legal advocates, so that it would underscore the point I knew Mr Colautti was going to make to you.
As we understand it, the objective of this legislation. and you have heard me say already that we support it, is to ensure that there is an advocate -- perhaps there is a better qualifying adjective to introduce, but an advocate that should not be taken to be solely or at all a legal advocate, because of course it may not be either; it is a form of social advocate.
You may design a different qualifying word or descriptive to include in the legislation, but we urge you to do that so there is not a misunderstanding at large in the minds of the people who are to be protected by this legislation about who these advocates are. That is the first point I wanted to underscore in a practical sense, because that is happening already. I am not looking forward to a future without that kind of descriptive, when I will simply install a call button that puts all these calls on call forward to your respective offices. I say that, obviously, with some facetiousness.
We are concerned, as Mr Colautti points out, with the rights of access. We see a fundamental conceptual difference between right of access to facilities and premises at large and to private homes because of the familial relationships that exist and because of the consequences for the family unit in the event that access is sought and denied. We urge you to consider a different process by which a denial of access can be reviewed when you are talking about the private home setting than for the public institution or facility setting. That was the second point.
Finally, to comment on the first point Mr Colautti made -- I am dealing with them in reverse order -- we think it most important, so that this legislation be certain and be understood by those who will work with it, that the duties of the advocate be clearly articulated. At least the rubric, the fundamentals -- we do not suggest the details, but the fundamentals of the training that advocates are to receive should be spelled out in the legislation itself. The legislation should speak generally to the qualifications as minimum background qualifications of the people who are going to function as advocates and the type of people whose qualifications and experience and background you wish to see on the commission. We think that most important.
We offer those suggestions, which we will develop in writing, in an effort to generate discussion that we hope will result in improvements to this legislation. We invite any questions you may have.
Mrs Sullivan: We will certainly be looking forward to your written remarks, and I think the oral presentations you have made this morning are useful. The question of competency determination has been put forward by other groups, including those in the health care field itself, and that is one that is a matter of some concern. We concur with your view that the duties of the advocates should be clearly articulated and that their qualifications should be spelled out in the legislation rather than through regulation, where there is not the opportunity for public discussion and debate over the role, place and duty of the advocate. We also believe there should be an accountability built into the legislation for the advocate who is performing whatever duties are specified.
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Mr Sterling: Why do you not rename your outfit the barrister's society?
Ms Cronk: It is an interesting idea, Mr Sterling. It would create some obvious discussion. "Discussion" is an interesting word to use in reply.
Mr Sterling: Okay.
Ms Cronk: I do not think it solves the problem, in any event.
Mr Sterling: I know. I say that mostly in jest.
Ms Cronk: I thought you were reading the statement in defence to the passing-off action there, sir. I was not quite sure.
Mr Sterling: I have had great concerns about the right of entry. So little has been said about protection of the private home. I suspect that had we introduced this legislation five or six years ago as a Conservative government, the New Democratic Party would have been at us with such a vociferous attack that we would not know where we were. But notwithstanding that, do you not think it should just go through a warrant process of some sort?
Mr Colautti: I do not think a warrant process is necessarily the way to go. Obviously if there is a denial of entry, there must be some reason for it. The warrant process does not fully allow for -- and that kind of court is not really set up for -- dealing with the kinds of disputes that may arise, whereas a summary application to the Ontario Court, simply supported by way of affidavit evidence, can set out very clearly what the objections are.
Mr Sterling: Okay, I understand that argument. I am sorry to cut you off, Ray. What about the time factor here? The argument is that the advocate arrives at the door and hears shouting behind the door. He wants to go in and help the vulnerable person. That is why the warrant process, notwithstanding there are different considerations --
Ms Cronk: If I could just respond, and Mr Colautti may add to it, it seems to us that what you need to be assured of under the legislation is a summary, peremptory procedure which will allow fast access to a judge for determination of an access denial issue. That is what you need. You have to be assured of the time line, that it is going to happen quickly.
Having said that, really what is behind our submissions on the deficiencies of the warrant approach, if I could put it that way, is that very often the warrant approach, if I can direct my comments at large, is designed for access to documents. It is designed for access to records. It has rarely been used in the past in the forum contemplated by this legislation, for access to people. It is quite a different balancing exercise, in our view, as to the judgement that has to be exercised for that.
There are analogies under other legislation, including in the civil litigation context, whereby summary, peremptory procedures are available to get before a judge of the Ontario Court (General Division) quickly for a fast decision on an issue like this. There need not be a time loss element to it. It is a question of where you go and whether you go on notice. We are very concerned to make it clear -- and I do not overstate it when I say -- in the interest of natural justice, that there be a notice requirement for this kind of a review of a denial of access. That is the concern. It is your forum. It is your time line, and it is the notice requirement that we are concerned about.
Mr Colautti: The notice should be the general rule. Where there are situations such as you are adverting to where there is an emergency, then there can be a mechanism built in for a very quick application without notice to a judge to obtain the necessary orders. These kinds of things are very standard in the courts right now, and it would not be anything unusual.
Mr Sterling: What do you do on Saturday night?
Ms Cronk: If you have to get to a judge on the weekend, you can.
Mr Colautti: I have had occasion myself -- not in this particular area -- to have to find a judge on a weekend. I simply pick up the phone and call him and get hold of him.
Ms Cronk: Ex parte applications to justices can -- obviously it is not as easy on a Friday. If you have to do it, it can be done.
Mr Colautti: It does not have to be done in a courtroom.
Mr Sterling: In your brief to us, could I ask you to consider what you would deem an adequate complaint process for individuals who were upset with the advocacy services? I am very much concerned, perhaps suspicious of state-run advocates of any kind. I do not like the idea of civil servants going out without very much direction and saying, "I am going to save somebody and protect his rights." I have concerns about that, from the point of view of both a friend of an incapable person and the incapable person himself. I view other professions as having much stricter disciplinary actions that can be taken against them, through the law society, health care professions etc. Under this one it really does smack of Big Brother in a lot of ways and I am very much concerned about that and would ask you to do that in your brief to us.
Ms Cronk: We would be pleased to do that.
Mr Sterling: Who would sit on the disciplinary board and what remedies could be taken. Can I ask you one other question you might consider? If advocates retain the right of entry, what would be adequate compensation for the wrongful use of that power? Should the advocate be personally responsible? Should he be protected from civil litigation? Should there be punitive damages?
Ms Cronk: Will you allow us to consider that in written form as well?
Mr Sterling: Yes.
Mr Colautti: That is a very difficult question to answer.
Mr Sterling: It might be somewhat philosophical, but you may have some knowledge of people who are hired by the state who have civil protection but are not given these wide powers as well.
Ms Cronk: It is precisely because of that undercurrent to the issue that we are concerned that there be a mechanism to get to court to review a denial of access, because the consequences for the advocate and the persons affected by the advocate's attempted entry will get you into civil court overnight unless there is a threshold judicial consideration of whether he should have been there at all. That is one of the problems that is behind our thinking.
Mr Sterling: That is right, yes.
Ms Carter: I will try to speak to your specific questions. First of all, as regards who the advocates will be and what their training will be, it was the intention in drafting this bill to leave that vague in the sense that this is not seen as something that is being set up by government so much as something that is going to be at arm's length, and hopefully free of conflict of interest and independent. So in section 13 we have set up the mechanism for the appointment of an appointments advisory committee. We have specified the groups that should be represented on this committee and we have left it to them to appoint the commission, which will in turn, of course, appoint the advocates. We have tried to give it a consumer orientation; that is, it is the people who are going to be most affected by the work of this commission who will have the input as to both who is going to be on that commission and what kind of training they will have. So I think the omission is not that we have been sloppy; it is that we have deliberately wanted it to evolve in that kind of way. You might disagree with that.
Ms Cronk: We recognize that, Ms Carter.
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Ms Carter: Regarding right of entry, I feel there is overreaction to this in a sense because what we are thinking about is one individual going to a house and requesting to speak to somebody who lives there. If that person, the person who may or may not need the help, asks the advocate to leave, he will immediately do so. So there is no pressure in that sense. If there is not found to be a reason to be there, then the person will immediately leave. All that he is asking to do is to speak, as privately as possible and without interference, to that person who lives in the house.
I am afraid if that were formalized, if notice had to be given, judges involved and so on, if there actually was somebody vulnerable in that house who may be suffering at the hands of other residents of that house, for whatever reason, the situation within that house might evolve in a way that led to further abuse of that person. In other words, I do not think there should be all this song and dance. I think it should happen quickly and quietly, and the advocate should be able to find out if there is a problem. If not, then they would leave, and as far as I can see no harm would be done. It is not like police breaking in and conducting a search or hauling people off to jail or whatever; it is just somebody wanting to come in and see.
Ms Cronk: It was for that reason that our comments were directed to what you do when access has been denied. It seems to us, to come back to the fundamental rationale of this, that this legislation is conferring extraordinary powers on citizens who previous to the introduction of this legislation did not have powers of this kind. So in that sense it is highly intrusive although the objectives are clearly laudable.
What we are suggesting is that if one assumes that those with the power you describe will exercise it in the way you hope -- in a way we all hope, and that is with discretion, courtesy and responsibility -- if access is denied they will immediately leave. What we are suggesting is that from that point forward there should not be the automatic kick-in of an offence under the statute, which is what is the case now from a legal interpretation point of view, and that they should not be able to simply go out and get a warrant, without more, to compel entry in the face of an initial refusal. It is simply a protection.
Ms Carter: I would like to ask counsel to clarify that point.
Ms Spinks: If you refer to section 34 of the bill, it creates an offence only for denying access to a facility, not to private premises, for that specific reason you mentioned. Therefore, the recourse of the advocate is to seek a warrant, and in normal circumstances that warrant will have to be made only on notice.
Ms Cronk: Thank you very much for that clarification. With respect, then, not to the automatic offence part of it, and I thank you for pointing that out because it is important obviously in light of the submissions we have made and the concerns others have expressed, it is equally important that compulsory entry in the face of an initial refusal not be permitted without the proper weighing of the interests.
I suppose, wearing a lawyer's hat, we all bring to this the experience that we have. Mine happens to be in the law, so I bring that background to my analysis of it, as the three of us do. When you design legislation of this kind, I would suggest what you must be concerned about is not the proper exercise of authority but the improper exercise of authority. It is, therefore, not the responsible, courteous and informed carrying out of the power that you have to be concerned with; it is the improperly carried out power. So what we are asking for is a protection to ensure that there is a check mechanism, that there is just another moment to pause before there is that compulsory entry, and the way to do that is with someone who is very used to looking at those issues, and that is a judge of the Ontario court.
Ms Carter: As I said, I think that does seem to be largely covered.
Your other point was the name. I like the name.
Ms Cronk: So do we.
Ms Carter: Can you suggest anything else we could use? I feel it is the appropriate word, and I am not quite sure what else we could call it.
Ms Cronk: We were not suggesting that it was necessary to abandon the use of the word "advocate." I personally have considerable affection for the term for all kinds of reasons. We were suggesting that you use a descriptive, an adjective, before it to make it clear that you were not talking necessarily about a legal advocate, ie, a lawyer. So if you called it a "social advocate," if you called it something else that was consistent with the language in your bill, I believe it would reduce what is very real confusion.
Ms Carter: It is understood these people will not be lawyers.
Ms Cronk: I would hope that some are, but maybe not all. I would not like to think we were automatically eliminated.
The Chair: Ms Cronk, Mr Read and Mr Colautti, on behalf of this committee I would like to thank you for taking the time out this morning and coming and giving us your presentation.
Ms Cronk: Thank you for your time.
The Chair: Note that answers to the questions to ministers were handed out to all the members of the committee.
Now we will proceed to the deferred motion by Mr Sterling.
Mr J. Wilson: Just a point of order, Mr Chair: In reference to the answers provided, particularly the answer concerning the current advocacy expenditures by the government, I do not find the paper that has been presented today to have sufficiently answered the question that was asked. The question that was asked is referred to in one of the paragraphs, where it says it would be very difficult to list all the groups outside government which are receiving government grants. I do not find it sufficient to say that just because it is difficult to list those and you would have to contact various ministries, we should not be provided with such a list.
It also seems to imply that many of these people who have appeared before this committee on behalf of their groups are being told by this response that they in fact do not do advocacy, and the government does not see that they do advocacy. Some of the major groups missing are the -- I forget the exact name, but we had them here yesterday -- the child advocacy office at Comsoc, and the adult protection service workers are not even mentioned in here. Mrs Sullivan had mentioned a few more to me in private. I would not be very proud of having prepared this response if I were the one who had done it.
Mrs Sullivan: Mr Chair, if I could speak to that point of order as well, I think people on this committee who have read, for example, the O'Sullivan report, seen that report -- an examination of advocacy services provided through government funded sources -- many of those agencies provide legal services through the legal aid services, but indeed there are social advocacy services provided through many of those services.
I think the question Mr Sterling put was one that has been a matter of real interest in terms of the drafting of the bills, right from the days before the O'Sullivan report came forward. I suppose what we are looking for, and I think that the government members would want to have this information too, is an indication of what is in the field now, what the extent of the services are, what the public funding is now.
One particular model of advocacy has been put forward in Bill 74, and then that model has been integrated into Bill 109 and Bill 108. The concern is if that is the appropriate model, if there could be adjustments to Bill 74 based on existing services. The intent of Mr Sterling's question was not to bring into question the concept of advocacy itself but to look at the appropriate models, and because the government has not done its own examination of the cost-effectiveness of the extent of duplication and possible duplication, the committee is asking for the government to do that, so that the information can come forward.
We are very surprised -- I think all of us -- that there have been very vague notions of advocacy, very vague notions of the cost of this entire Advocacy Commission. That is the kind of information it seems to me is important, not only in the consideration of the legislation but in the consideration of whether this particular model will work, and whether amendments to the bills might be useful to introduce an adjusted model that can be done through amendment. I think this information Mr Sterling asked for was material that we wanted, that we think is important, and this is just an inadequate response. I feel very strongly about that.
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Mr Sterling: If the ministry cannot identify the other advocate services, perhaps other members of the committee can help me identify the ones we have heard about here and that we know about in our own communities. Perhaps then the ministry can go out and try to get a best estimate of the resources that are being put there and whether or not it is anticipated that those resources are going to be reallocated to the Advocacy Commission.
I am told, for instance, that most hospitals have a patients' advocate within their own hospital structure. Is it the intention that that advocate remain and do that work and that there be another advocate coming in and that there are going to be two advocates dealing with the patient, or is that going to mean a cutout of that person in terms of the hospital budget or whatever? That is one area I would like to know about, and I understand it varies from hospital to hospital.
Based on the evidence before this committee -- I think 40% was the figure used by the adult protection worker I asked a question of -- 40% of their time is taken up by advocacy. I would like to know what it costs for the 175-odd adult protection workers and the administrative structure surrounding them in this province. Those are two examples that I know of off the top of my head, and perhaps Mrs Sullivan and other members of the committee know of other areas.
The lawyer who was with the children's rights group that was here does work with the children's hospital. I do not know how he bills his time, whether he is hired by the children's rights group, whether it is funded as well and whether or not that funding will end when the Advocacy Commission is going full tilt. I think it is important that we know that as well.
With regard to the legal aid clinics that are set up, is it the intention to cut back their funding as a result of these advocates coming and taking the place of those advocacy groups as well as the legal aid clinics?
Ms Akande: I think part of this discussion has to revolve around one of the issues that was mentioned by the previous group, the Advocates' Society that just came in on matters of very specific definition of advocates, what their functions are and who exactly they will be. I have found in the past that the term is used most generally by a lot of groups. They define their particular form of advocacy, which may or may not conflict with or overlap with what we are specifically describing here.
The other thing I want to mention in relation to that is at the back and it is a part of the same point. On page 5, it says in this last paragraph, "There are no other ongoing specific advocacy services of a non-legal nature," and I think there is a whole question that you are speaking to also, that we are not certain about what particular services they are referring to here because of the fact that that term "advocacy" is used so generally and so widely by so many different groups to mean so many different things. It is funded differently by different groups, and some of it comes into government and some of it does not, but I think that is one of the things we will have to do in order to answer this.
Mr J. Wilson: Thank you, Ms Akande, I think your points are excellent. Regarding the second briefing notes that have been given to us entitled "Documentation of the Prevalence of Abuse," I was just wondering if it was possible -- because in the section, "Abuse Among People with Disabilities," I do not see any reference to the sample size. It is all done in percentages as far as I can see, having read the four or five pages, and I would like to know what the sample size is. It would be much more helpful in interpreting this information.
Ms Carter: I agree with what Mrs Akande has said. I think this is a unique service we are suggesting, so to say one should equate it with things already in existence is a little fuzzy at the edges. Some people styled "advocates" would not be so under this definition, for example.
Mrs Sullivan: Could you explain that?
Ms Carter: The group that was just here presenting to us are advocates. This is a wide term that includes a whole range of different functions. I would say there is not likely to be any overlap, for example, with these people who in fact are lawyers. I would like to ask the Chair if he would invite the ministry to expand on this and let us have some further --
The Chair: I was going to suggest that we invite the ministry to try again, taking a look at some of the things that have been brought up by the members.
Mr Sterling: Mr Chairman, because Mr Winninger has to catch a plane leaving very shortly, I would like to place my motion. I will keep my remarks very brief.
The Chair: Mr Sterling moves, given that many parties and presenters before the standing committee on justice have acknowledged that major changes are necessary to improve and enhance Bills 74, 108, 109 and 110, that the standing committee on justice reconvene for public hearings not earlier than two months after the government amendments to these bills from the Ministry of Citizenship, the Ministry of Health and the Ministry of the Attorney General have been tabled and widely circulated to enable all interested parties the opportunity to study and assess the government amendments before this committee proceeds with clause-by-clause examination of the bills.
Mr Sterling: That is my motion. I think it is self-explanatory.
The Chair: Discussion? Seeing no discussion, all those in favour of Mr Sterling's motion? All those opposed?
Motion negatived.
The Chair: Thank you. Seeing no further business before the committee today, we adjourn until Tuesday, March 24 at 10 am.
The committee adjourned at 1238.