OFFICE FOR DISABILITY ISSUES, MINISTRY OF CITIZENSHIP
CONTENTS
Monday 25 May 1992
Advocacy Act, 1992, and companion legislation
Office of Disability Issues, Ministry of Citizenship
Mary Beth Valentine, advocacy project leader
Clément Sauvé, senior adviser
Trudy Spinks, ministry counsel
Linda Perlis, ministry policy analyst
STANDING COMMITTEE ON ADMINISTRATION OF JUSTICE
*Chair / Président: Cooper, Mike (Kitchener-Wilmot ND)
*Vice-Chair / Vice-Président: Morrow, Mark (Wentworth East/-Est ND)
Akande, Zanana L. (St Andrew-St Patrick ND)
*Carter, Jenny (Peterborough ND)
Chiarelli, Robert (Ottawa West/-Ouest L)
Curling, Alvin (Scarborough North/-Nord L)
Harnick, Charles (Willowdale PC)
Mahoney, Steven W. (Mississauga West/-Ouest L)
*Malkowski, Gary (York East/-Est ND)
Runciman, Robert W. (Leeds-Grenville PC)
*Wessenger, Paul (Simcoe Centre ND)
*Winninger, David (London South/-Sud ND)
Substitutions / Membres remplaçants:
*Sullivan, Barbara (Halton Centre L) for Mr Mahoney
*In attendance / présents
Also taking part / Autres participants et participantes: Sterling, Norman W. (Carleton PC)
Clerk / Greffière: Freedman, Lisa
Staff / Personnel:
Swift, Susan, research officer, Legislative Research Service
Beecroft, Doug, legislative counsel
The committee met at 1653 in room 151.
ADVOCACY ACT, 1992, AND COMPANION LEGISLATION / LOI DE 1992 SUR L'INTERVENTION ET LES PROJETS DE LOI QUI L'ACCOMPAGNENT
Consideration of 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, 1992 and the Substitute Decisions Act, 1992 / Projet de loi 110, Loi modifiant certaines lois de l'Ontario par suite de l'adoption de la Loi de 1992 sur le consentement au traitement et de la Loi de 1992 sur la prise de décisions au nom d'autrui.
The Chair (Mike Cooper): I call this meeting of the standing committee on the administration of justice to order. As members are all aware, the briefings will start today because of the number of amendments. Briefings have been requested from each of the ministries affecting each of the bills. With the indulgence of the committee members, the briefings will take place for about half an hour and then afterwards there will be time allocated for the caucuses for questioning.
Our first briefing will be on Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons. I'd like to welcome our presenters. Could you please identify yourselves for the record and then proceed.
OFFICE FOR DISABILITY ISSUES, MINISTRY OF CITIZENSHIP
Ms Mary Beth Valentine: Mary Beth Valentine, the advocacy project leader.
Ms Trudy Spinks: Trudy Spinks, counsel to the Ministry of Citizenship.
Ms Linda Perlis: Linda Perlis, policy analyst, Ministry of Citizenship.
Mr Clément Sauvé: Clément Sauvé, senior adviser, Office for Disability Issues.
The Chair: Will you please proceed now.
Ms Spinks: Yes, we don't have a great deal of time, so I intend to highlight seven areas of the bill where substantive amendments have been made. Of course, there are other amendments largely of a legal and technical nature. We don't want to preclude questions being put forward on those amendments, but we will at least limit our briefing in the first instance to the major areas.
The first major area we would like to address concerns the accountability of advocates. The original bill permits the Advocacy Commission to establish minimum qualifications and educational standards for advocates and to establish procedures and standards governing their services. These qualifications and educational standards would be set out through regulations made under the act. In addition, the commission is required to ensure that advocates comply with these procedures and standards.
Concerns were expressed during the public hearings and in many of the written submissions that were put forward to this committee that these provisions do not provide sufficient assurance that advocates will be trained and accountable for their conduct or that complaints relating to advocates will be dealt with by the commission. As well, there was apparent confusion as to who would be entitled to act as an advocate under the act and how such authority would be acquired.
In response, the government is proposing to amend the act to require that every person who provides advocacy services on behalf of the commission receives the commission's authorization to do so. The relevant provision is set out in subsection 7(4) of the reprinted bill. In addition, it will be an offence to purport to act on the commission's behalf without such an authorization, and you can find that provision in the new section 34.1.
The commission will be entitled to stipulate the terms and conditions of such an authorization and will also have the authority to suspend or revoke it. The criteria and procedures relating to the granting, suspension or revocation of an authorization must be established by the commission. You will note that previously the commission had permissive regulation-making authority around matters relating to the provision of advocacy services, which would include "You may act as an advocate." It was felt that these provisions should in fact be mandatory and, accordingly, they were moved up to the function section of the bill, which is section 7.
Amendments are also proposed which will make it mandatory that the commission provide training to advocates and that the commission establish a code of conduct which advocates must follow and a written procedure for dealing with complaints relating to advocates. The complaint review procedure that is developed by the commission will be subject to the approval of the Minister of Citizenship. Again, these provisions are found in section 7 and they will apply equally to all advocates, whether they are employed on a paid or a voluntary basis.
The term "advocate" has been expressly defined to mean a person who is authorized to provide advocacy services on behalf of the commission. The definition is only applicable to the term as it is used in the Advocacy Act. It is not intended to preclude other persons or groups from calling themselves advocates or providing advocacy services, provided that they do not purport to do so on behalf of the commission. A clause has been added which we hope will make this intention clear, and that is found in subsection 34.1(3).
Another area around which there seemed to be some confusion concerned the role of the advocate. The original bill addresses the types of advocacy services that advocates may provide. These include the provision of services to individual vulnerable persons to help them express their wishes and exercise their rights. Advocates will also provide services as required under the companion legislation, the Consent to Treatment Act and the Substitute Decisions Act. The latter function is primarily limited to informing persons of the meaning of a finding of incapacity and the right to challenge that finding.
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As I indicated, these provisions appear to have been widely misinterpreted as giving advocates the authority to override decisions about medical treatment and other matters. This was never the intention when the bill was drafted. To make this clear, a clause has been added which explicitly states that advocates are not conferred any authority under this act to make decisions in place of or on behalf of the vulnerable person. The relevant section is section 15.3. For further clarity, the term "rights advice" has been added to refer to the advocate's function under the other acts. That reference is found in clause 7(1)(d). In addition, an amendment is proposed which prohibits an advocate from doing anything that is inconsistent with the instructions of the person for whom he is acting. That statement is found in section 15.1.
Another area we felt was not sufficiently clear concerns the advocate's relationship with family members and substitute decision-makers. Considerable concern has been expressed that the act does not facilitate cooperative relationships among advocates and the family members and friends of vulnerable persons. In response, amendments are proposed that will require advocates wherever feasible to consult with the vulnerable person to determine whether there are family and friends who could provide support. If the vulnerable person wants this assistance or if he or she is incapable of instructing the advocate, the advocate must, if the circumstances permit, assist the family or friends in their efforts. This requirement is set out in section 15.2.
Complementary amendments are also proposed to these provisions and they govern access to information and confidentiality, sections 24 and 30 respectively. These amendments would enable advocates to obtain the information necessary to contact the family members and friends of vulnerable persons who are incapable of instructing an advocate and to bring concerns regarding the care of such persons to the attention of family members, friends and so forth.
Another amendment requires that a committee comprised of a majority of family members, care givers and health and social service practitioners be established to provide advice to the commission. This is an amendment to section 10. In addition, the commission's mandate to provide public information programs would be clarified to ensure that persons with a special interest in vulnerable individuals, including family members, could participate in these programs. That change is set out in subsection 7(5).
The bill has also been criticized for failing to spell out the way in which legally authorized substitute decision-makers and advocates will interact. As a result, when a vulnerable person is incapable of instructing an advocate it is proposed that the act be amended to expressly authorize advocates to provide advocacy services on the basis of instructions given by the vulnerable person's substitute decision-maker. The substitute decision-maker would include, for example, a guardian of personal care or a person operating under a power of attorney for personal care. That reference is found in section 15.3.
A related amendment would authorize advocates to access the vulnerable person's records with the consent of the substitute and would authorize advocates to disclose the information they obtain about the vulnerable person from the records to the substitute.
Some questions have also been raised concerning the provisions governing access to records. Under the original bill, advocates are only entitled to have access to records relating to vulnerable persons that are held by facilities, and these are largely publicly regulated institutions and referred to in the schedule appended to the act. Other records are not accessible, such as those held by unregulated boarding and rest homes, which would include, for example, a place such as Cedar Glen. The demonstrated problems associated with these homes suggest vulnerable residents of these premises should be accorded the same protection as those living in facilities.
As a result, the government is proposing that provisions governing access to records be amended to include the records maintained by the operators of such premises. The reference to these records would be found in subsection 24(1).
It has also been noted that access to records is currently restricted to records maintained by residential facilities only. The effective resolution of a vulnerable person's problem may necessitate access to records which are maintained in respect of a vulnerable person in a non-residential program, such as a community mental health program or a vocational rehabilitation program.
In response, an amendment is proposed which would permit access to records held by certain programs which are administered by the Ministry of Health or the Ministry of Community and Social Services. These programs would be identified through consultation with these ministries and designated under the regulations. The relevant statutory references are subsection 24(1), clause 25(1)(c) and clause 36(1)(e.1).
There are also some amendments proposed to the section which governs access to records and disclosure of information which is obtained for the purpose of systemic advocacy. The original bill entitles an advocate, with the commission's consent, to access certain records relating to vulnerable persons for the purpose of systemic advocacy. Information obtained for this purpose may be disclosed to other advocates, members of the commission, persons who work for the commission or in community programs and vulnerable persons. Concerns were expressed that the purpose of this access is too broadly defined and that the disclosure provisions do not adequately protect the privacy of vulnerable persons.
In response, amendments are proposed to section 25 which would narrow the purpose of the access to "detecting and demonstrating systemic policies or practices that may be detrimental to vulnerable persons." The disclosure provisions in section 33, which deal with information obtained for the purpose of systemic advocacy, have been tightened. These new provisions would prevent the disclosure of personal information without the consent of the person to whom the information relates unless that information is already publicly available.
Another very significant area of change concerns the provision of non-instructed advocacy. The original bill authorizes the commission to make regulations relating to the provision of advocacy services to vulnerable persons who are mentally incapable. Many groups have expressed concern that these provisions do not outline with sufficient clarity the commission's mandate to provide advocacy services to such persons. They also point out that several of the act's provisions, particularly those governing access to information and disclosure of information, would override the regulations and prevent effective advocacy for those who most need it.
The government is therefore proposing several amendments to the bill. The purpose and functions sections of the bill, that is, section 1 and section 7, would be amended to state that "the commission may provide non-instructed advocacy services for those who are incapable of instructing an advocate where the health or safety of such persons is at risk of serious harm." Advocates would be authorized to see the records relating to such persons and disclose information to appropriate persons. Disclosure by the advocate to the public guardian and trustee would be mandatory in these cases. In addition, advocates will be entitled to obtain the information necessary to contact the friends, family members and substitute decision-makers of incapable persons and will be authorized to disclose information concerning their care to these individuals.
The last major area we wish to address today concerns the powers of entry. The original bill provides that advocates may enter private premises without a warrant and at specified times for the purpose of providing advocacy services to vulnerable persons. The advocate must have reasonable grounds to believe that the vulnerable person wants or could benefit from the services of an advocate. Unlike entry to facilities, it is not an offence to deny an advocate entry to private premises. Entry may be enforced through a warrant. An advocate must leave the premises promptly if the vulnerable person declines the services.
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The purpose of this entry power is to ensure that vulnerable persons are not denied the services of an advocate in situations where another person or persons control who visits them or prevent them from learning about the availability of the services. It is particularly intended to benefit those who may be at risk of abuse, neglect or exploitation.
Concerns have been expressed that this power unreasonably interferes with privacy rights. In response to these concerns, it is proposed that the right of warrantless entry be limited and narrowed to three situations: where the advocate has reasonable grounds to believe the vulnerable persons wants the services of an advocate, where there is a risk of serious harm to the health or safety of the vulnerable person, or where the location of the premises makes it impractical to obtain a warrant. Accordingly, obtaining a warrant would tend to be the rule rather than the exception as it relates to private premises. The relevant provision is set out in section 18.
You'll note that the entire section governing powers of entry has in large part been redrafted. The bulk of the other changes is simply to improve the drafting to clarify matters and address some legal issues.
Those are all the major areas that we wish to cover in this briefing, although as I indicated earlier, we'd welcome questions on these or any other areas of the bill.
The Chair: Thank you. Questions or comments?
Mrs Barbara Sullivan (Halton Centre): I want first to acknowledge the work that has been done by the government in reflecting through amendments that have been put forward so far many of the comments from the groups and agencies who appeared before the committee. As you will understand, we are still working our way through the amendments and feel they have gone a long way to meeting some of the needs that have been put forward. We have already identified areas, however, where we will indeed be putting forward further amendments.
In reality, having given the kudos for that, I also have to underline that I think it's really a shame that in this combination of bills, 200 amendments were necessary as a result of what really was inadequate pre-work in relationship to the ways the bills work together and the kinds of issues which are very sensitive to the groups and organizations ultimately affected by those bills.
There are a couple of areas I wanted to clarify with you, one of them relating to obtaining the warrants to enter premises. Would you clarify why you would have included the location of premises being impractical?
Ms Spinks: We consulted quite extensively with constitutional experts and so forth in order to bring these provisions, as best one can in anticipation, into line with the charter. We were advised by them that when one is addressing issues relating to warrants, it's common and makes a great deal of sense to include such a provision because you may be dealing with places that are in very remote areas of the province where access to a justice of the peace may be almost impossible in terms of the time frame and the distance.
Mrs Sullivan: On a larger question, I wanted to review an issue that I've spoken with the Ontario Advocacy Coalition about, one that certainly the coalition is very strong in its support of, and that is that the community agencies would be those which do not provide services other than advocacy services to vulnerable people. I believe it is subsection 7(2), but I may have the wrong section.
Ms Spinks: It is; you're right.
Mrs Sullivan: I wonder if the government has explored the possibility that in those very remote areas, or areas where community services are offered in a combined way, indeed the provision of advocacy services through community agencies may well be hindered if the agency offering advocacy services is limited to doing only that. I think, by example, of some agencies which would be doing case work but which might also provide the assistance vulnerable people would require, whether it's rights advocacy or other approaches in relation to influencing change in government or other services. I would like to have some discussion of the policy decision in that area because I think we may be leaving some people out or leaving them without access to services that would otherwise be available.
Ms Spinks: I think I might refer that question to Ms Valentine.
Ms Valentine: You're certainly correct, Mrs Sullivan, that the advocacy coalition is very concerned about this particular issue. It relates primarily to the issue of independence, the importance of the commission being independent from government and advocacy services being independent from service providers, both financially and administratively. The issue relates the same way at a community-based level, within a community agency that is providing direct services.
Certainly the concern you've expressed about wanting to assure that advocacy is available to people has been discussed in some detail. We are well aware of situations where there may not already be services available in a community. I think one of the approaches would be to support and encourage an actual group, committee or board to form that would be able to provide its own services. That's very much in line with the concept of participation of vulnerable people, empowerment of vulnerable people etc. On the other hand, there are certainly ways for a ministry to be able to flow funds through another body for a temporary period if necessary in order to ensure that funds can flow into a community.
There are a number of ways for that to happen. For instance, when community mental health services began flowing funds, late in the 1970s, for a number of years many small agencies were attempting to establish community supports for ex-psychiatric patients. Frequently funds were flowed through an agency such as the United Way or a church group, a number of different sources, in order to allow the particular group providing the services to get in place.
If I could use, for instance, the example that if a community agency is providing both advocacy and support services -- perhaps you'll find that my examples tend to swing along the psychiatric services line, because that is my background in mental health. During the course of clause-by-clause etc I will also probably use examples related to the patient advocate program, because until being seconded to this position I had been the coordinator of the patient advocate office for a number of years.
My example, then, would be that at a community-based agency you could have services such as residential accommodations, case management, any number of programs -- day activity programs etc -- operating out of an agency. Where a client, a disabled person, has concerns about the types of services being offered by that agency, I think the inherent conflict of establishing advocacy within such an agency is obvious from that standpoint. It makes it somewhat difficult to have an advocate sitting in the next office to the person running the group home program or the case management program.
Mrs Sullivan: You have used two examples which underline the exact kind of concern I have. By example, the church groups and the United Way would be excluded by the clause, as it's written, from flowing funds through to an advocacy community agency which would be established at some point.
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Mr David Winninger (London South): On a point of order, Mr Chair: I just would like to question the propriety of having people of the bureaucracy, knowledgeable as they are, being asked to respond to policy-oriented questions. I would submit that they're here today to answer questions of information regarding the amendments to the act. I think we're diverting the discussion into policy and I don't think it's appropriate that people in the bureaucracy be dealing with policy questions today.
The Chair: Thank you, Mr Winninger. Any policy questions should obviously be directed to the parliamentary assistants. They may respond if they choose.
Mrs Sullivan: Do they choose?
Mr Gary Malkowski (York East): You're talking about issues. Which issue do you want me to respond to? Could you rephrase your question, please?
Mrs Sullivan: We've just been discussing the policy decision which is being made in the legislation: that the only agencies which will receive funding, which will be providing advocacy services to vulnerable persons, will be those agencies which provide only advocacy services. My view is and my concern is that there will be some areas of the province which will be underrepresented, some agencies which will not be able to access that funding because indeed other services are provided, including, by example, fund-raising services for support in the community.
I understand the issue of conflict in relationship to the particular organization. I'm wondering if the issue has been further explored to ensure that if there is an organization, the United Way or church organizations which do provide other services, or perhaps an organization such as the Association for Community Living -- if those associations are not allowed to provide services, why not?
Mr Paul Wessenger (Simcoe Centre): Mr Chair, just for the purpose of clarification, I would like to know where in the act it says that a community agency has to provide only advocacy services in order to be an advocate, because reading the definition of "community agency," it just states that it means a non-profit community agency that is authorized.
Mrs Sullivan: Subsection 7(2).
Mr Wessenger: The only restriction, it appears, is that they do not provide services to vulnerable persons. It would seem like you could provide other services, other than to vulnerable persons. I'm just reading and in that definition it seems it's only a situation where you don't want an advocacy service provided by a group where there might be a conflict of interest. I can understand that aspect of it from a policy point of view, and that would be a policy decision with respect to subsection (2), but I would think that would be the only restriction, based on that. Maybe I'm misunderstanding the question.
Mrs Sullivan: I think counsel understands. Perhaps when we do clause-by-clause we could look at either a reframing or an approach where the issue could be discussed at some greater length. I think there will be people who will not be able to access services. If they are vulnerable and unique and there is no local agency, by example -- even all vulnerable people within a community -- this will be problematic. They could not be helped by an existing agency which would provide other services.
Ms Spinks: If I could just provide a point of clarification, certainly the intention of subsection 7(2), as it is drafted, is to provide that the commission may only authorize community agencies that are not in the business of engaging services that are not strictly advocacy services.
The Chair: Further, Ms Sullivan?
Mrs Sullivan: No, thank you. Since we're restricted in terms of the information we can receive on policy matters, we would rather wait to hear further from groups and agencies that have examined the bills more thoroughly, when they are finished that process, and deal with some of these issues at that time.
Mr Norman W. Sterling (Carleton): I'd like to thank you for obtaining these facilities today so the groups that were so interested in the bill will be able to look at the tapes of the proceedings here today and get the benefit of your briefing as well.
At first blush, I think you've tried to meet some of the issues that were of concern to myself and my party, and I congratulate you on that. I have not had an opportunity to look at the bill in great detail. We're dealing with legal language and we're dealing with a number of groups that had significant concerns about your bill, at first blush. I'm anxious to hear from the Ontario Friends of Schizophrenics and I'm anxious to hear from the Alzheimer's group as well, to see what their reactions are after they have an opportunity to look at it.
Unlike my Liberal colleague, though, I do not find the number of amendments shocking. I find it refreshing that the government is willing to look at the bill and amend it significantly, because quite frankly, with due regard to the fact that the advocacy bill is the first try of its kind in basically any jurisdiction, I don't think we as legislators can expect the first try to be the be-all and end-all. Therefore, I think we've got to feel our way through this process. That's been part of my concern in terms of making certain everybody has an opportunity to deal with this, not dragging their feet, but giving them due opportunity to consider the amendments and have an opportunity to come and talk to us again if they deem that necessary.
I have some specific questions I'd like to go through. At page 3 of your brief, section 15.1, you talk about, "For further clarity, the term `rights advice' has been added to refer to the advocates' function under the other acts. In addition, an amendment is proposed which prohibits an advocate from doing anything that is inconsistent with the instructions of the person for whom they are acting."
We have other legislation we're going to consider in conjunction with this, and I don't think we can separate them totally. What happens if a person makes a power of attorney for personal care and he appoints a friend to make the decisions on his behalf and that friend or attorney, as he would be called under the legal document, indicates he wants such-and-such a treatment? Does that exclude the advocate totally if that person says: "I'm appointed by the incompetent person. I believe that person wanted this kind of treatment"? Is there any function for the advocate under those circumstances?
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Ms Spinks: There isn't a function for the advocate except in limited instances -- and you'll hear from Mr Fram more on this -- where an advocate may be providing rights advice during the process of validation, which, it is proposed, may be somewhat changed. I'll let him give you the details on that, but with respect to the rights advice function as it may come into that process, that is not a situation where an advocate is commenting on the nature of the treatment that's proposed or the provisions of the power of attorney. It's simply a rights advice function, and I wouldn't call that instructed advocacy.
The purpose of section 15.1 is to ensure that when you get into a situation where an advocate has been retained by an individual to act on his or her instructions, the advocate acts consistently with those instructions.
I guess the short answer to your question is that at no time is it contemplated that the advocate would be attempting to tell the vulnerable person, or the individual who is the grantor of the power of attorney, or the attorney, whether or not the particular treatment is in the best interests of the individual or not. That is really not the advocate's function. So in that case they're not into a situation of instructed advocacy.
If, on the other hand, the grantor of the power of attorney was capable of giving instruction and instructed the advocate to take certain steps, perhaps communicate with the person who has a power of attorney and so forth, or with the doctors, he or she would be permitted to do that, providing he, again, acted consistently with his client's instructions. Does that clarify it?
Mr Sterling: What happens in the case we heard in terms of Alzheimer's patients where there are lucid periods and there are periods where people are not lucid? Often people can understand that they are at the beginning stages of Alzheimer's disease, and in their lucid period they give a power of attorney. But lots of unfortunate things happen after a person suffers from this disease. Often they claim silly things -- people are stealing their money -- and this can be their family that is involved. Where does the advocate become involved then?
Ms Spinks: The individual who has been given the power of attorney, assuming that all the requirements under the Substitute Decisions Act have been met in terms of the capacity to grant it, has a valid power of attorney and it is not up to the advocate to unilaterally interfere with that. I think what you are asking me is whether or not the advocate would perhaps advise people on what rights they had in terms of revoking the power of attorney, if that's the expression they gave, in a period of time when they were not lucid. If that is the case, I think we have to remember that advocates will, we trust, be trained to deal with situations where individuals vary in their lucidity, and again I think we need to come back to the first principle that the rule is that the advocate acts on the instructions of the individual. If, in the advocate's opinion, that person is not capable, then he or she is only permitted under the act to act in certain limited instances.
Mr Sterling: Can I ask you another question? In terms of accountability of advocates, you propose an amendment in section 7 that requires you to get the authorization of the commission to act on their behalf. For instance, we had a brief from adult protection workers, and they said to this committee that they spend somewhere between 30% and 40% of their time as an advocate. Are they going to be controlled by the commission in their advocacy function, or are they going to be outside of the act?
Ms Valentine: There's no intention that the adult protective service workers would automatically be required to come under the commission. It's anticipated that many people such as family members, APSWs, case managers etc will still fulfil a certain advocacy role, a certain level of advocacy, but there likely will be times -- and we would hope a good liaison is established between members of the Advocacy Commission and such other groups -- that a referral might be made from a case worker, an APSW, etc to the commission if that person was not able to resolve within the context of his or her own abilities and limitations.
Mr Sterling: If a family or somebody who purports to represent a vulnerable person is dissatisfied with what an advocate has done, who is going to review the conduct of the advocate?
Ms Spinks: We have proposed a provision that will require the commission to establish a written complaint review procedure, and that will have to be vetted by and approved by the Minister of Citizenship. It is anticipated that this procedure would set up the rules relating to the commission's method of dealing with the complaint. I don't think there is anything in the act that would preclude the commission, if it so chose, from perhaps suggesting that another individual, someone outside the commission, review complaints as well. That's not precluded by the legislation, but it would be the commission, subject to the approval of the minister, that would decide what that procedure will be. It hasn't been spelled out in detail in the legislation, but again it's quite common with respect to regulated occupations that there is a mandatory requirement that a complaint procedure be developed.
Mr Sterling: What is the discipline that is meted out if someone has stepped outside the boundaries?
Ms Spinks: That would depend on the rules the commission developed pursuant to its regulation-making authority, which relates to the authorization section, so I don't think one could say with any certainty exactly what would follow in what situation. That applies as well to the law society or the College of Physicians and Surgeons of Ontario and so forth. Every case has to be evaluated on its own facts. The commission does have authority, however, to suspend or revoke the authorization or to attach terms and conditions to it.
Also, I think we need to remember that the advocates will be employees either of the commission or of a community agency, so they do have an employer relationship and accountability.
Mr Sterling: I guess there is an accountability, but there's also a problem with that as well. When you're dealing with professional organizations in general, there's not the employee-employer relationship and therefore they can discipline a member of their profession, and do, and say, "You no longer can practice, period."
Ms Spinks: There is authority under this act for the commission to revoke an authorization, which has the same effect.
Mr Sterling: What happens to them, then, in terms of the employee-employer relationship?
Ms Spinks: The employer would have to decide, I suppose, how to proceed in light of that revocation. The two don't necessarily go hand in hand unless it's a term of the individual's employment that he or she has an authorization and is in good standing, so to speak.
Mr Sterling: Can I ask one other question? You have no doubt studied Bill 109, have you?
Ms Spinks: Somewhat. I wouldn't speak for the Ministry of Health.
Mr Sterling: The concern of our health care professionals was that the triggering mechanism for advocates was almost universal. In other words, as I understand it, on every procedure in a vulnerable -- that has changed, has it?
Ms Spinks: The government is proposing changes to the sections that deal with rights advice, the circumstances in which rights advice would have to be provided and what type. I wouldn't assume to speak for the Ministry of Health and I think perhaps we should wait for tomorrow to have them explain to you exactly what changes those will be, but the rights advice functions are somewhat circumscribed in Bill 109.
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Mr Sterling: What is your view of what is going to be the normal triggering mechanism for an advocate to be engaged?
Ms Spinks: Again, I don't want to speak for the Ministry of Health -- its representatives will be here -- but under Bill 109 it has been narrowed to certain circumstances including where individuals object to the proposed treatment, ask to see an advocate or are in certain prescribed institutions or facilities.
Mr Sterling: One other question I had was, is it your understanding that the commission will be under the Freedom of Information and Protection of Privacy Act, controlled by that act?
Ms Spinks: It is anticipated that the commission will be designated as an institution to which it applies. The act has been drafted on that understanding. Obviously that designation has not taken place yet. There has been some concern about the application of FIPPA. That concern specifically is that under FIPPA, third parties can apply to obtain information from an advocate's file, information that's relayed from the individual vulnerable person to the advocate. It's our opinion that this information should be private. There is an amendment proposed that would exclude an advocate's case file -- that is, a file he develops in the course of giving rights advice or providing individual advocacy -- from the application of FIPPA. But generally speaking, the commission will be subject to FIPPA. For example, an individual could apply for general information concerning the policies, funding and general operation of the commission.
Mr Sterling: I would have looked at the alternative. My preference is that the commission be under the Freedom of Information and Protection of Privacy Act for the privacy protection under the act. Quite frankly, I don't look at the act as being all that overindulgent in giving out information. Therefore, I would rather have my file under the act than not under the act, if I had my druthers.
Ms Spinks: We could debate the specific provisions for a long time. But it's my view that the Advocacy Act's confidentiality provisions are narrower and stricter and protect the individual vulnerable person's privacy better than FIPPA.
Mr Sterling: Okay, that's fair.
Mr Wessenger: I have a question with respect to section 6. I was wondering if you might advise us of the reason for the amendment of subsection 6(1) from the previous draft.
Ms Spinks: The section of the original bill says, "A majority of the members of the commission shall be persons who have or have had a mental or physical disability, illness or infirmity." Two things were pointed out. First, it seemed rather anomalous that having had an illness would qualify one to sit on the commission, because everybody in this room would qualify. Second, the act is for and about vulnerable people. It's more consistent with the principle of consumer control, I think, that we describe the membership of the commission or who we want to have as the majority of the commission as persons who are or have been vulnerable.
Ms Valentine: To some extent it's a clarification of the original intent.
Mr Wessenger: Reading the definition of "vulnerable person," I just have some concerns about whether that might be too restrictive a definition. I'd like some assurance from a practical point of view that it would not be too restrictive a definition. That is my initial concern in looking at it.
Ms Spinks: Certainly the groups that are most interested in this and that will likely be participating in the nomination process, consumer groups, felt that this was a significant improvement over the old section. They may not be satisfied with it in its entirety, but they certainly feel it's better than its predecessor. I should also point out that it only refers to a majority of the membership. It would not exclude other people, people who do not fall into that category, from sitting on the commission.
Mr Wessenger: The only thing I would like is just some background information with respect to the aspect that it is a workable section; that's the only thing from a practical point of view.
Ms Spinks: I can say that we are assured and, as I say, the section does not perhaps go far enough to satisfy some of the groups which represent vulnerable people, but they feel it is workable, that it does in fact reflect the basic principle underlying the act.
Mr Wessenger: My basic concern is that there might be some people, for instance, who have a moderate or have had a moderate or severe mental or physical disability or illness, but who would not be vulnerable and might be disqualified from being members of the commission. That is under the definition. That's my particular concern with respect to the definitions, because I see some people who'd be very valuable sitting on the commission who might be excluded as not being within that definition.
Ms Spinks: Because the disability isn't severe enough?
Mr Wessenger: Yes.
Ms Spinks: Of course, on a plain reading of the act, the individual would have to fall within the definition of a vulnerable person. But I think, again, we should remember that this is only talking about a majority, that other individuals are not precluded if the appointments advisory committee should so choose.
Ms Jenny Carter (Peterborough): I have two questions. One is a very general one: Would you say that the amendments add up to a clarification and intensification of the original intent of the bill, or would you say that there's been change in direction on any point?
Ms Spinks: I think the changes are largely ones of clarification. I don't think we have deviated in any significant way from the basic principles and the basic intent. Ms Valentine or Ms Perlis might want to comment on that further.
Ms Valentine: Certainly I would reiterate that the basic policy and intent has not changed. Probably the only significant issue to point out would be again the issue of non-instructed and pulling that within the act rather than leaving it to regulations. All the other issues have been, I think, strengthening, tightening, clarifying the original intent.
Ms Carter: So that's a slight extension of what was included before. Otherwise, we're just clarifying and generally making the act more effective.
Ms Valentine: Yes.
Ms Carter: The other is in the region where this overlaps somewhat with Bill 109, which I know we're going to hear about later. I'm not clear what the function of an advocate might be, if there is a function, with respect to a person who is being declared incompetent, as might happen during the progress of Alzheimer's disease. For example, there might be a point beyond which the person is not fit to instruct, if you like. But is an advocate called in when that decision is being made?
Ms Spinks: Yes. Under both Bills 108 and 109, if the individual is alleged to be incompetent to make personal care decisions, manage his or her property or provide informed consent to treatment, then there is a role for an advocate, subject of course again to the amendments that will be brought forward, which most of you have already seen to Bill 109, which will circumscribe the provision of rights advice or perhaps allow it to be provided by other persons in some circumstances.
There are no changes to the advocate's function in the provision of rights advice and other advocacy services under Bill 108, other than those that may follow in an ancillary way from some of the suggested changes around the validation or the requirements for validation.
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Mr Sterling: As I'm going through this I'm finding a few more questions. The committee that's established under section 10 -- the minister establishes the committee to advise the commission -- was going to include the health care providers and family members of vulnerable persons etc. What is the power of the committee, if any?
Ms Spinks: The committee's function is as described in section 10: to advise the commission. I think it's a very similar mandate to those of advisory committees that currently provide advice to the government -- for example, the advisory council on disability issues, the advisory council on senior citizens, some of the advisory committees that are proposed for the public guardian and trustee under Bill 110.
Mr Sterling: There's nothing in here that requires the commission to listen, or there's no reporting function of the committee. Is there any budget for the committee? How does it function?
Ms Valentine: With regard to budget, any requirement would be required to be funded. So since it is a requirement that the committee be established, part of budget planning would take this into consideration and ensure there was a budget for the committee.
Mr Sterling: But you don't have anything in here. Maybe that is a policy question, but there's no reporting function in here. They don't have to produce an annual report. There's no reporting function.
Ms Spinks: I assume you're talking about the advisory committee.
Mr Sterling: Yes.
Ms Spinks: That is correct. There is no specific requirement.
Mr Sterling: I would like to see some kind of requirement that something be produced.
Mr Sauvé: I'd just like to add that in terms of a number of advisory committees, the actual terms of reference of the advisory committees are established by an order in council. The requirements for the advisory committee to the government in terms of disability issues are that the terms of reference, the reporting requirements and the disposition of the recommendations are spelled out by the order in council that sets up the advisory committee. That's not the exclusive case here, whether it's the advisory committee on French-language education or the Ministry of Health advisory committee on the assistive devices program. There again, it's set up by order in council with --
Mr Sterling: Yes, but most of those advisory committees are not contained in legislation, as I understand it. Most of them are advisory committees which the minister decides --
Mr Sauvé: Most ministry acts give authority to the minister to propose the establishment of advisory committees. It's usually under the authority of ministry acts.
Mr Sterling: I guess this is held out, though, as something that is going to keep the commission in line with regard to the wishes of those other interested parties. I'll be interested to hear what they have to say in terms of whether they would like some kind of reporting function spelled out as well.
Mr Sauvé: I think the fact it would be mandated by legislation would give it perhaps more clout than one that was established under a more ad hoc approach.
Mrs Sullivan: I hope this isn't a policy question, because I'd like some information about it.
I'm looking at clause 7(1)(c) of the combined bill, relating to systemic advocacy. One of the concerns I have is the understanding of what "systemic" means in that I think it's a jargony word. In fact, what is really being proposed is a method of promoting change in either programs or institutional approaches to issues. First, how do you see the advocate kicking in to do that? Second, with regard to the nature of change and the identification of needed change, how do you see the advocate working in the definition of those issues, if the voice is to be with the vulnerable person?
Ms Valentine: I'll address this, again from the experience of the psychiatric patient advocate office. I think I'll be able to address it quite concretely. Systemic advocacy essentially must be grounded in individual case advocacy. There would not be a proposal from a policy standpoint that suggested that systemic advocacy could/should occur completely independently of individual case advocacy. With regard to your question relating to kicking in, issues would be identified by vulnerable persons. Systemic advocacy may occur because a number of people raise the same issue. It could occur because an issue comes to an advocate's attention that clearly has a significant impact on a number of other people. It could be raised from community consumer groups, where they're requesting assistance from an advocacy standpoint -- voting issues, for instance. There are a number of ways it could come about, but it comes from the perspective of individual client consumers to start with.
The other issue is that the consultation role with consumers and consumer groups can frequently occur in systemic advocacy. That might vary to some extent depending upon what the issue was and what the setting was etc.
Mr Sterling: If I could just ask a supplementary on what you said about voting issues, would it be your anticipation that under this bill the commission would take a stand in a provincial election to support one party or another?
Ms Valentine: No, no, the right for people to be able to vote -- I use that as an example because -- no, it's not a partisan issue -- it is a systemic example that came to mind. It's been in only the last few years that people who are in institutional settings have had the right to vote.
Mr Sterling: I want to know how to act on this act.
Ms Valentine: If you need help getting a voting booth in your nursing home or situations such as that, that is the type of issue I would be referring to.
Mr Winninger: Your party is definitely a vulnerable one.
The Chair: Order, please.
Ms Spinks: I'd like to just point out that we have taken out the reference to the word "political" and changed it to "governmental," because Mr Chiarelli certainly raised the point during the public hearings that it might lead to the conclusion you were suggesting.
Mr Sterling: One of the problems you can get into in these organizations is, how much advocacy are you doing for the individual and how much are you really into the systemic business? We faced it with the legal aid clinics some years ago. We'd have to pull them back on track every so often, or we felt we had to every so often, when they were spending too much of the resources in the one way rather than the other. There's no consideration as to what they have to do with their money.
Ms Valentine: No, there's not a requirement within the act. I suggest that the issue may evolve over a period of time. Likely in the beginning there would be more focus on client issues and there would gradually be an increase on the amount of systemic work done but with some sort of cap or limit on that, I anticipate.
I could again refer to the evaluation that was done of the psychiatric patient advocate office, and there was a strong recommendation that more systemic and non-instructed work should be done. That was after about three years of the program. Again, there is the concern often brought forward by consumer groups that if focus stays entirely on individual work, the changes never get made, that you keep addressing the same types of issues over and over and that systems don't really become better for disabled persons in that way. So the importance of systemic work really can't be discounted, but to suggest that there's a perfect balance or percentage -- I have never seen it being described in any literature on advocacy as an ideal percentage or ratio to be established.
The Chair: Thank you, Mr Sterling, for your brief supplementary. Mrs Sullivan.
Mrs Sullivan: What concerns me is the vagueness of this particular paragraph still. I think the reference, as I understand it, is really to programs and services provided by government, the legal system, the social services system and so on. Is that right, or is it further than programs and services?
Ms Valentine: No, it definitely could be further than programs and services. For instance, if there were a particular issue related to disability policy that the disability community felt required legislative reform, it could entail that type of governmental advocacy.
Mrs Sullivan: That would ultimately be a program delivery question, though.
Ms Valentine: It could be a program delivery question in the sense of absence of a program. I tend to think of programs as a specifically circumscribed program versus a large policy established that allows different programs to function.
Mr Sterling: I have one last question. The adult protection workers who came in front of this committee were very sceptical because of their experience. They said that what we need is an obligation on the government to react to the advocate. Most of the advocacy work with vulnerable people as they experienced it was not a problem with finding out what was right or wrong, or convincing or getting the vulnerable person to understand what he wanted or what she needed, it was a question of getting the government to react. Is there anything in the Advocacy Act which forces the government to meet its obligations as the advocate puts forward?
Ms Spinks: There is nothing there as suggested by the APSWs, no. I don't think it would be appropriate. In fact, I don't know if it would be effective or legal to legislate an obligation on the government to respond.
Ms Valentine: Could I add, however, that the requirement that a report be tabled in the Legislature on an annual basis provides the opportunity for a check and balance. Supposedly, three parties would hear the report or see the report and there would be the opportunity for questions etc at that point.
Mr Sterling: Just before we close, Mr Chairman, we may like to ask some questions of the staff after we deal with Bills 108 and 109. I'm not sure it will be necessary, but we've had some references to 108 and 109 and I'd appreciate it.
The Chair: I'm sure they'll make themselves available if need be.
Ms Spinks: Absolutely.
The Chair: Seeing no further questions or comments, Ms Valentine, Ms Spinks, Ms Perlis and Mr Sauvé, on behalf of this committee I'd like to thank you for taking the time out of your busy schedules to come in and give us your presentation today. This committee stands adjourned until -- oh, Mr Sterling.
Mr Sterling: To Ms Swift, our researcher, we haven't had an opportunity to match up the amendments the government has brought forward with the various requests or concerns we have heard from the various groups. Are we doing that, or are we attempting to do that, or is that a possible task?
Ms Swift: It's possible. The time frame would depend on how the committee is going to be proceeding, but it would take some time. I could do that if you wanted, if the committee requested me to do it. I haven't undertaken that task.
Mr Sterling: I would appreciate at least seeing the lining up of the various sections that a particular group was concerned with against what the government has proposed; not necessarily saying whether the government's amendments have met the concerns, because I think that would be a judgemental part of it, but I would appreciate that. I don't know whether other members of the committee would like it or not.
Ms Swift: I certainly could do that.
The Chair: I'm sure that would be very useful to the committee.
Seeing no further business before the committee this afternoon, we stand adjourned until immediately following routine proceedings tomorrow.
The committee adjourned at 1805.