ADVOCACY ACT, 1992 / LOI DE 1992 SUR L'INTERVENTION
CONTENTS
Tuesday 1 September 1992
Advocacy Act, 1992
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:
*Brown, Michael A. (Algoma-Manitoulin L) for Mr Mahoney
*Eddy, Ron (Brant-Haldimand L) for Mr Curling
*Owens, Stephen (Scarborough Centre ND) for Ms Akande
*Sterling, Norman W. (Carleton PC) for Mr Harnick
*Sullivan, Barbara (Halton Centre L) for Mr Chiarelli
*Wilson, Jim (Simcoe West/-Ouest PC) for Mr Runciman
*In attendance / présents
Also taking part / Autres participants et participantes: Auksi, Juta, senior consultant, policy development branch, Ministry of Health
McKague, Carla, counsel, Office for Disability Issues, Ministry of Citizenship
Perlis, Linda, policy analyst, Office for Disability Issues, Ministry of Citizenship
Malkowski, Gary, parliamentary assistant to the Minister of Citizenship
Valentine, Mary Beth, senior policy and program adviser, Office for Disability Issues, Ministry of Citizenship
Clerk / Greffière: Freedman, Lisa
Staff / Personnel:
Filion, Sibylle, legislative counsel
Hopkins, Laura, legislative counsel
The committee met at 1042 in committee room 1.
ADVOCACY ACT, 1992 / LOI DE 1992 SUR L'INTERVENTION
Consideration of Bill 74, An Act respecting the Provision of Advocacy Services to Vulnerable Persons / Loi concernant la prestation de services d'intervention en faveur des personnes vulnérables.
The Chair (Mr Mike Cooper): I'd like to call this meeting of the standing committee on administration of justice to order. Today we will be continuing with the clause-by-clause on Bill 74. We'll revert back to the very beginning now and start voting on some of the amendments.
Section 1:
The Chair: The first amendment is on government reprint on clause 1(b), and we have an amendment, a Liberal motion, on subclause 1(b)(ii). Are there any comments or questions? Mrs Sullivan.
Mrs Barbara Sullivan (Halton Centre): I provided the comments on this in our discussion yesterday and I don't think I have anything to add to that. I think the members will recall that. This is the "reasonable grounds" addition.
The Chair: Thank you. Further comments or questions? Mr Malkowski.
Mr Gary Malkowski (York East): The government feels that this certainly is an acceptable standard. It conforms with subsections 17(1), 18(1) and 24(2), (3) and (4), so we have no problem with that.
The Chair: Thank you. Further questions or comments? Seeing none, all those in favour of the motion by Mrs Sullivan? Opposed?
Motion agreed to.
The Chair: Now back to the government motion on 1(b), as amended. Comments, questions? Seeing none, all those in favour of the government motion? Opposed?
Motion agreed to.
The Chair: Now on a motion by Mrs Sullivan on clause 1(f), comments?
Mrs Sullivan: Once again, I spoke to this yesterday. This is the addition of the words "rights and needs" in the amendment and I believe that yesterday we had an indication of concurrence both from the government and the third party.
Mr Malkowski: We are unable to support this because we feel it would encourage support for the rights and needs of the vulnerable individuals. That means that the "needs of a person" may take priority over that individual's actual rights.
Mrs Sullivan: I suppose that's one of the reasons this amendment was put forward. I want you to note that it's within a section that reads, "to acknowledge, encourage and enhance individual, family and community support," and it would then read, "for the rights, needs, security and wellbeing of vulnerable persons."
The addition of rights and needs to that amendment we believe strengthens it and in fact ensures that the family will also be supportive of encouraging and enhancing the rights that are available to the vulnerable person, as well as the needs, which may be health needs, which may be needs with respect to other advice in relationship to property, which may be needs for personal care. We feel this adds to support for the vulnerable person rather than detracts from it.
Mr Malkowski: The reason we find this difficult to support is because when we look at needs, we may then find that people would force treatment, it could be disempowering and in fact things could be done under duress.
The Chair: Further comments? Seeing none, all those in favour of the Liberal motion? Opposed?
Motion negatived.
Section 2:
The Chair: On the Liberal motion on section 2, comments?
Mrs Sullivan: I have a replacement motion, which is now being distributed. It's identical really to the section 2 I moved yesterday but deletes clause (c). Do I have to read it back into the record?
The Chair: Yes.
Mrs Sullivan moves that the definition of "vulnerable person" in section 2 of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"`vulnerable person' means a person who, because of a moderate to severe mental or physical disability, illness or infirmity, whether temporary or permanent,
"(a) is unable to express or act upon his or her wishes or to ascertain or exercise his or her rights, or has difficulty in expressing or acting on his or her wishes or in ascertaining or exercising his or her rights, and
"(b) does not have another person who is appropriate, able and willing to assist him or her in exercising his or her rights, in expressing or acting on his or her wishes or in ascertaining or exercising his or her rights."
Would you care to withdraw your other motion?
Mrs Sullivan: Yes, I withdraw the original motion.
The Chair: Thank you very much. Comments?
Mrs Sullivan: We had a substantial discussion yesterday on this amendment which appeared to have some support. I thought that the recommendation from Mr Wessenger that clause 2(c) be removed because it in fact was a cause for intervention and not a part of the definition was a useful one, and therefore I've put forward a new amendment that eliminates that particular clause in the definition.
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Mr Norman W. Sterling (Carleton): We're very supportive of this, particularly clause 2(b), in really allowing the family its rightful place in terms of representing vulnerable people. In my view, it deals with the situation in fairly strong terms and allows the family almost first right in terms of taking care of its own within the family, and that's why we support this very strongly.
Mr Malkowski: We are not able to support this motion for the following reason: In clause 2(c), as mentioned, that definition of vulnerable individual shouldn't include the risk of serious harm to a person. That definition then would impede a person's ability to get an advocate.
Mrs Sullivan: I apologize that we don't have the replacement motion in front of us now.
The Chair: We do have it.
Mrs Sullivan: We do have it in front of us now. So as a consequence, we're not dealing with the original motion. If that is the government's objection, it appears that the replacement motion in fact meets that objection, and I hope to see government support for this amendment.
Mr Jim Wilson (Simcoe West): Particularly in light of the discussion we had yesterday around the word "appropriate." I thought through that discussion we alleviated some of the concerns that the government had expressed and that I had expressed yesterday. Today, as Mr Sterling has said, we're certainly very supportive of this motion because we think it's necessary to support families.
Mr David Winninger (London South): My concern certainly wasn't alleviated yesterday, and I presented the case where the family member may be entirely appropriate and willing and able to give care, but the vulnerable person chooses not to have that person provide the care. That amendment to the definition would foreclose the possibility of even having an advocate because you've defined such people as not being vulnerable merely because there's a family member in the picture ready, able and willing to provide care.
Mrs Sullivan: But they wouldn't be appropriate.
Mr Jim Wilson: It wouldn't be appropriate; that was the discussion with the term. Legal counsel advised that the other statutory requirements stand.
Mr Winninger: What's appropriate to the beholder may not be appropriate to the vulnerable person. That's the point, empowering vulnerable people to make choices, and that amendment would take the choice to have an advocate away. It would depend upon whether or not the family member agrees. I don't see the need for that, so I'm not convinced.
Mrs Sullivan: I believe that in the interpretation provided by the counsel to committee yesterday, the word "appropriate" was defined to include requirements of other sections of various bills, such as where the person has made a choice with respect to a power of attorney. "Appropriate" would also include the decision-making of the vulnerable person himself as to the involvement of the person.
"Appropriate" would mean that a person might be appropriate at one time and another person appropriate at another time. We think that the use of that word in fact meets the criterion of objection that's being put forward by the government members.
Mr Malkowski: Again I'm going to have to disagree, because the principle we're dealing with here is freedom of choice and autonomy that has to be respected for each individual.
Mrs Sullivan: And that's precisely what this does. The word "appropriate" enables the person to provide that choice.
Mr Sterling: Would it be more acceptable to the governing party if in addition to "appropriate" the word "acceptable" were included in there? It would surely mean to me that it would be an acceptance on the part of the vulnerable person that the family member was representing him.
Ms Jenny Carter (Peterborough): The person might need an advocate in order to determine whether somebody who was acting for him was in fact acceptable to him from his own point of view. This is the point that we can't underline too much.
Mr Sterling: So you're saying that even though the vulnerable person wanted the family member, who was acceptable to him, and it was appropriate and the family member was able and willing, the state should intervene regardless?
Ms Carter: But who is to say whether that person is acceptable to him? It may be that he needs to be able to say that to a third person.
Mr Sterling: The vulnerable person?
Mrs Sullivan: Why should the government say? It should be the person who says.
Ms Carter: It should indeed, but he may need to be able to say that to an advocate in order to get through some barrier of being protected by people whose protection may be suppressing his own wishes.
Mr Malkowski: I think we're back to the term changing to "acceptable." Again, that is open to interpretation on acceptable to whom. If we're talking about the vulnerable individual himself, his choice of yes or no is what should be respected and followed.
Mr Paul Wessenger (Simcoe Centre): My concern about the amendment is that if it were made and then you look at clause 1(b) of the act, it somehow that provision somewhat unusual or not making sense, because to provide advocacy services, for instance, "to help vulnerable persons to bring about systemic changes," it would not make sense to say you're only acting for -- I think clause (b) doesn't really belong in the definition of "vulnerable person"; that's what I'm saying. It would make the rest of the act not very consistent, and the same rules reply to (b) as reply to respect to risk of harm. From a purely legal point of view, I think this amendment would create problems in the whole act. That's why I think it's inappropriate; it should be in section 7.
Mrs Sullivan: Let me provide you with an example. A person has had a stroke and is unconscious or, in the aftermath of the stroke, is having difficulty expressing himself and is also having difficulty in dealing with the facility in which that person is located or with other aspects relating to care. A family member will be downgraded if the government's description of a "vulnerable person" is taken into account in terms of providing advocacy services to that person, unless this amendment is included. An advocate will have priority in assisting the stroke victim -- he certainly will -- to obtain rights, to obtain information, to express himself and to have his wishes acceded to.
I think it's very clear that the government's intention in not accepting this amendment is to downgrade the role of families and of friends, and to replace the involvement of those people with basically government advocates, and we just do not believe that's acceptable.
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Mr Malkowski: In responding to that issue, if we look at section 15.2, it says, "An advocate who is providing advocacy services to a vulnerable person under clause 7(1)(b) shall, if feasible" and then goes on to say "(a) consult with the vulnerable person to ascertain whether there are family members or friends who may willing and able." That responds to that very concern.
Ms Carter: I think we've got a real misunderstanding here. The point is, if somebody's vulnerable and in the situation Mrs Sullivan is describing, the family and friends obviously will assist and he won't need an advocate. Why should they? An advocate is only called in if needed.
Mrs Sullivan: Then they are not vulnerable.
Ms Carter: They're still vulnerable, they're defined as vulnerable, but they wouldn't need an advocate. So this is in the wrong place. We don't want to remove that person from being defined as vulnerable, because in his situation it may be that the family and friends were not adequate in some way and he might need an advocate. In most cases they would not, they would not call on an advocate's service, but that doesn't mean they should be defined out of this category.
Mr Sterling: I just want to say that unless some of the later amendments are accepted -- and we don't know whether they will be -- it's the advocate who determines who's vulnerable and who's not. There doesn't appear to be any appeal mechanism for the vulnerable person to dispute what an advocate says or doesn't say.
Once the advocate says Joe Blow is vulnerable, then that advocate can start to exercise powers like getting information about Joe Blow, without any kind of check on those particular powers. That's what I think some of the section homes in on.
In some ways, because there are so few checks and balances on what an advocate does -- according to the bill as it's now written, he doesn't have any disciplinary process whereby people could complain about his activity. If he gets information about a particular patient and is careless with that information and it falls into the hands of other people, there's no penalty against that advocate. That's why we are putting forth a number of amendments to keep the advocate in check, because he or she is put in a very powerful position over the person he deems is vulnerable.
Mrs Sullivan: I'd like to stand this amendment down for the time being and come back to it in our discussions at a later point.
The Chair: Do I have unanimous consent to stand this one down? Agreed?
Interjections: Agreed.
Mr Malkowski: To respond to Ms Sullivan's concern, also in subsection 18(3) it clearly says, "The advocate must leave the premises promptly if the vulnerable individual indicates that he or she does not want the services of an advocate." That clarifies any concern.
The Chair: All right. This motion's been stood down.
Mr Malkowski: No, I would like to call a vote.
The Chair: It's already been stood down. They agreed. I asked for unanimous consent to stand it down and everybody agreed. There was no disagreement.
Mr Malkowski: I did not hear that call.
The Chair: I looked around the room when I called it and there was no disagreement.
Section 3:
The Chair: Now we move on to the government reprint on subsection 3(2), government motion.
Mr Sterling: Yesterday I indicated that we would be voting against subsection 3(2) to be part of the bill. My reasoning is twofold.
The Advocacy Commission, basically, is made up of people who represent adult interests. It appears that the act, by subsection 3(1), is basically dealing with vulnerable people who are 16 years of age or older.
We have heard testimony here that there are problems in terms of dealing with adolescents who may be considered competent but have lack of experience to make reasonable decisions with regard to their care and control. We've also heard significant evidence from various groups who have talked about our Child and Family Services Act. We've heard evidence about our existing Mental Health Act as well.
It's my view that under Bill 109 there is a capacity with the Ministry of Health to not only use advocacy rights advisers but other people as well. It seems to me that advocacy for young people would be better practised outside of the Advocacy Commission. I don't think the structure of the Advocacy Commission, as it is set up, will properly represent the views of vulnerable children or people under the age of 16. As we see, the commission is to be made up of people with a mental or physical handicap, former or future. It's to be made up of people who are over 75 years of age etc.
My feeling is that we would be best served and that people under the age of 16 would be best served if we dealt with them in a separate category altogether under Bill 109 in terms of rights advisers; that we in essence let the common law prevail up to the age of 16, and that rights advisers be provided by the Ministry of Health as they would see fit, in conjunction with the Child and Family Services Act and the Mental Health Act, so that those children can have adequate representation if they are in fact being kept against their will. I believe that under the Mental Health Act there are review procedures when children are kept in those particular circumstances.
If it is felt that there should be additional advisers, I just don't think the Advocacy Commission is the place for this particular group of individuals to be represented. That's after I've heard all of the evidence before us. I really do hope the government will try to keep things in perspective in terms of the evidence we've received.
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Mr Winninger: I'm cognizant of the concerns expressed by Mr Sterling. At the same time, I'm mindful that when Mr Giuffrida of the Psychiatric Patient Advocate Office was here responding to the amendments, he indicated his concern that advocacy services that are presently provided to children would be foreclosed on if we were to adopt the restrictive provision under the Advocacy Act. I know that was his concern: that services presently provided to children could no longer be provided if there was an age 16 cutoff.
Mr Sterling: Well, how are they being provided now without an advocacy act? That's my question. I assume that they can continue to be provided but not under the Advocacy Commission, and that would be what I would recommend that would take place.
Mr Winninger: Well, yes. For example, children under the age of 16, because of a certain provision in the Mental Health Act, are receiving some advocacy and rights advice right now. Maybe I can get some more advice from staff on this through the auspices of the patient advocate office. Mr Giuffrida made the point that if we had an age-of-16 cutoff, that couldn't happen. I would like to hear from staff on this point too, if they're willing to elaborate on that concern.
Ms Mary Beth Valentine: I think there are two separate issues. One is the issue of rights advice and one is the issue of advocacy, and I think Mr Giuffrida was referring to general advocacy for children under 16, as well, that is now provided in provincial psychiatric hospitals.
The simple response to the issue of rights advice, as it's now provided in other facilities, is that there is the intent that advocacy that is now provided elsewhere will be transferred to the commission once the commission is operational, so in fact it would all come under the same auspices at that point.
Mr Winninger: Which would exclude children under the age of 16 if it came under the same auspices?
Ms Valentine: If the requirements are still there or there in any act for rights advice, then rights advice would be provided by the commission. In effect, it may well be provided by the very same staff people who are now providing it, but the authority would then be the commission versus simply the authority of the Psychiatric Patient Advocate Office under the Ministry of Health at this point.
Mr Wessenger: I'm wondering if the committee would like some clarification as to what rights are provided under the Mental Health Act in this matter.
Mr Jim Wilson: Just before you do that, in that answer you're obfuscating rights advice and advocacy services. I think Mr Winninger wanted to know about advocacy services for those under age 16.
Ms Valentine: Yes, that is a different issue. The issue is that currently in the provincial psychiatric hospitals, where advocacy has been provided for approximately 10 years, there are two psychiatric hospitals that have adolescent units that serve about 100 children, adolescents, who are now receiving general advocacy services. As this bill goes through, the commission will not be providing advocacy for those children.
Mr Wessenger: I guess they'd like that information. If you'd like to clarify it for the committee, the situation with respect to what rights are presently provided under the Mental Health Act.
Ms Valentine: Let's first of all comment to the --
The Chair: Excuse me. Could you go to a mike that's working?
Ms Valentine: Oh, here it is. The particular units in the psychiatric hospitals that now have access to the PPAO services, they are actually quite a complex situation under legislation because, although they are currently under the Mental Health Act, that's by way of exception temporarily by regulation because those particular units are in fact under the Child and Family Services Act. However, there are discussions between the ministries of Health and Community and Social Services as to the ultimate provision of where those units would fall, since they are units in which children are served.
As to rights advice, the actual service delivery of rights advice under the Mental Health Act is, for a variety of reasons, in addition to the capacity to consent to treatment. There is, of course, the issue of involuntary committal, there's the issue of access to your own clinical records, there's the issue that for under-16s you have an ability to rebut a presumption of incapacity to consent to your own treatment. If you've been admitted on parental consent as a non-involuntary patient -- in other words, you don't meet the committal criteria -- there's an ability to challenge that finding.
For all those reasons, there is an ability to meet with a rights adviser, and that rights advice is delivered in the provincial psychiatric hospitals under the patient advocate program by rights advisers who work under the supervision of the advocates. In other hospitals, general hospitals, psychiatric units and so on, the rights advice is delivered by duty counsel under legal aid. I think the feeling is generally that that's not been the most satisfactory arrangement because it doesn't have the kind of coordination the patient advocate program is able to provide.
Mrs Sullivan: Thank you. I think we really are dealing with two issues here. Mr Sterling has raised one issue with respect to the provision of the rights advice. The issue relating to the children's units under the Psychiatric Patient Advocate Office is one we have had concern about. The young people who are there who are receiving advocacy services are used to receiving services and have built relationships with advocates who are working with the PPAO.
We've heard a lot of intention with respect to the place of the PPAO. We see nothing in this legislation in any place that shows in fact how that will fold into a new advocacy system. There's nothing in the legislation that causes that, and there's no provision for grandfathering those youth units.
We understand that Bill 74 generally applies to people over 16 and that it's not the policy intention of the government to lower the age limit for the provision of advocacy services.
None the less, the question I want to ask is, does subsection 3(2), which indicates that the act also applies in respect to other persons, capture the young people who are already receiving advice, advocacy services, through the PPAO? If it doesn't capture them, one would assume that an entirely new arrangement for those young people is going to have to be made, either through legal aid or through another service provision, and in those cases one assumes that they will not be at all subject to this act. I wonder if we could have some understanding of why the government doesn't want to grandfather those two units, which are being served by the PPAO now, and where in fact the PPAO is going to fit in terms of advocacy services. This is an age issue, but there's another issue involved there too.
The Chair: Comments?
Mr Sterling: Yes. When I heard the explanation with regard to how people under 16 are being treated in our province now, it made me even more convinced that we shouldn't vote for subsection 3(2). That is because of the intermeshing of the various pieces of legislation we already have in place, the Child and Family Services Act and the Mental Health Act.
Secondly, I view the whole area of decision-making somewhat differently for people who are 16 years of age or more, if that is the defined age we're going to choose. If an adult, if we want to say 16 years of age or more, wants to make a decision to not receive treatment in the health care setting etc, we are deciding to empower that person with the right to make that particular decision. However, I believe that society as a whole owes an obligation to people under 16 to encourage them perhaps to a greater degree to follow the advice of the people we entrust to provide treatment for those individuals.
That's where I see the Advocacy Commission and the Consent to Treatment Act as being very different for those two bodies in society that we as politicians are supposed to represent. I really, truly believe that the commission -- and this issue has not been addressed -- will not focus on what is a reasonable balance between the right to treatment for young people as opposed to the right of empowerment for those young people. Therefore I believe that whole body of individuals, those people under the age of 16 -- because I think we have to pick an arbitrary age -- should be dealt with differently and away from the Advocacy Commission. I do not believe the Advocacy Commission will represent those people as we as politicians should view our duty to that segment of our society. That's why I continue to put forward the idea of having the Advocacy Commission truly represent people 16 and over, and under Bill 109 I hope that the Minister of Health would capture the advocacy services which are being provided to people who are under 16.
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Mr Malkowski: Mr Chairman, could we clarify something?
The Chair: Go ahead. It's for clarification?
Ms Valentine: I can clarify further, if you like.
The Chair: Sure.
Ms Valentine: At one point, there was a suggested amendment though the Minister of Citizenship to grandfather the children and adolescents who are now receiving advocacy services to allow them to continue until they're with some other system in place, if at some point that happened. However, there was discussion at the cabinet committee on social policy, and the decision taken at that level was that services should be provided through the Child and Family Services Act, the same as they are provided or not provided for children in other settings. So it has been a decision regarding general advocacy services that was taken at that level.
Mr Sterling: I'm sorry, I don't follow the reasoning behind that. What is the decision?
Ms Valentine: That services should be arranged through the Child and Family Services Act, the same as for adolescents in other settings. In other words, children in other settings do have some advocacy services available to them through the Child and Family Services Act. There are three advocates for the province. It's an entirely different type of setup, but other than for issues of rights advice, that general advocacy should be provided in the future through the Child and Family Services Act versus through the commission.
Mr Sterling: So you're supporting what I'm saying, is that right?
Ms Valentine: Everyone's shaking their head at me. I'm not entirely sure because I've been in other discussion here, but I'm stating what the CCSP decision was at the time.
Mrs Sullivan: I think that there is agreement between Mr Sterling and the counsel to the committee, or the policy adviser to the ministry, but I wonder if we could have some clarification of what in fact will happen to the PPAO and other services that now exist and how that's accounted for in this bill. I think this is the appropriate place to do it.
Ms Valentine: Again, I can clarify that there has been a cabinet decision that the PPAO will be transferred to the commission once it is operational.
Mrs Sullivan: But the point is that that is not included in this bill, nor in Bill 110. As far as I know, they are now authorized under the Mental Health Act to act, and there's no provision for that kind of transfer.
Ms Valentine: Under the Mental Health Act at this point it's because of the section 5 authority -- it's actually now section 9 in the new revised act -- which is similar to an inspector's authority that's granted by the minister, so that the minister would make the decision. Basically, it would be a ministerial decision to transfer the program rather than grant a specific certificate, which they now have.
Mrs Sullivan: But the Minister of Health isn't responsible for the Advocacy Act. Specifically, the Minister of Citizenship is responsible for it. The Minister of Citizenship would not have the authority to transfer that program.
Ms Valentine: No, the Minister of Health has made the commitment to transfer the program. It has been a cabinet decision.
Mrs Sullivan: I don't think that's good enough. I just don't that's good enough.
Ms Valentine: It's only an administrative issue. The PPAO is not a legislated, mandated service at this particular point. It's only basically at the whim of the minister that section 5 authority has been granted to the advocates. That has been one of the concerns actually for the lack of the authority of the advocate program to date. It is strictly an administrative function.
Perhaps when Gilbert is here this afternoon, or at some point, he might be able to address it and clear it up for you a little bit. But it is strictly an issue that the minister makes the appointment and, quite frankly, Gilbert issues the certificate. It's generally an inspector's type of certificate for psychiatric facilities. There is no legislated authority for PPAO at this point.
The Chair: Seeing no further discussion, all those in favour of the government motion on subsection 3(2)? Opposed?
Motion agreed to.
Section 4:
The Chair: The Liberal motion on section 4, Mrs Sullivan.
Mrs Sullivan: Although this isn't a motion relating to substance of delivery of services and so on, I really feel that it's in the interests of the government members to support this particular motion.
The act now requires that the minister responsible for Bill 74 is the Minister of Citizenship. It's designated completely. As I indicated yesterday, this is a very practical amendment to ensure that if there's a change in a structure of government, in the duties that are required of a minister, or even in the name of the ministry itself, the bill does not have to be reopened to make another change with respect to the minister who is responsible for the act.
This is, I think, a useful and highly practical amendment. We don't see any reason for not proceeding with it, because it's very clear that, with this government, the Lieutenant Governor in Council would designate the Minister of Citizenship, assuming that there's always going to be a Minister of Citizenship with this government.
If there are melded responsibilities of a minister, it may be less useful for that ministry and that minister to have responsibility in perpetuity. We just feel that this is a very practical amendment and should be considered by the government.
Mr Malkowski: In general, we find this motion acceptable. However, there may be similar adjustments that would then have to be made to other sections.
Mrs Sullivan: I have amendments to account for that.
Mr Winninger: I would suggest the matter be stood down.
The Chair: Do we have unanimous consent to stand this one down? Agreed.
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Section 5:
The Chair: Next, the Liberal motion on subsection 5(2).
Mrs Sullivan: Mr Speaker, I have a replacement motion for this section.
The Chair: Would you care to withdraw your original?
Mrs Sullivan: I'd like to withdraw my original motion, subsection 5(2).
The Chair: Mrs Sullivan moves that subsection 5(2) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Composition
"(2) The commission shall consist of a chair and at least nine and not more than 12 other members, appointed by the Lieutenant Governor in Council on the minister's recommendation."
Mrs Sullivan: Mr Speaker, this motion is put following our discussion with respect to another motion that I put to amend subsection 6(1). With respect to the composition of the commission, the discussion yesterday, it would seem to me, came to the conclusion that the requirement I had included in the original motion of a solid 12 members plus a chair for the committee was in fact an impractical one and that a sliding recommendation of not less than nine, not more than 12 would be appropriate to capture the various representatives of organizations and individuals whom we want to see represented on the commission. In consequence, I'm putting this motion forward. I hope it will be considered by the government on its own and certainly as part of a companion of my later amendment.
Mr Jim Wilson: We will be supporting this amendment.
Mr Malkowski: We will not be able to support this motion, because the requirement that there shall be a chair and a specific number of members does not allow for sufficient flexibility for the realities of finding appropriate replacement candidates.
Mrs Sullivan: I need more justification of that response, because the recommendations for the makeup of the commission now are that the commission shall include a chair, at least six and not more than 12 other members. My change would be a chair, at least nine and not more than 12 other members.
Mr Malkowski: I think it has to be read in context with subsection 6(1), since the basic issue is the intention to add family members, which is something that we would have to decline.
Mr Sterling: I'm sorry, I don't understand that last comment. Perhaps I could have some amplification of it.
Mr Malkowski: Reading it in context, looking at subsection 6(1), the basic issue seems to be that the intent is in fact to add family members to the commission, which is something we would not be able to support.
Mrs Sullivan: Mr Chairman, we're dealing with subsection 5(2), which suggests that the commission now be reconstructed from a minimum of six to a minimum of nine people and a maximum of 12, which is exactly what the commission is comprised of now, and the chairman. This motion as presented should be dealt with separately from any other later motions. It stands by itself. In fact it will require a minimum size of a commission that is larger than that proposed by the government, but only minimally larger. I don't see what the big deal is.
Mr Michael A. Brown (Algoma-Manitoulin): In reading this, I'm a little confused when I read subsection 6(1) as reprinted, which tells us, "A majority of the members of the commission shall be persons who are or have been vulnerable persons."
I'm confused on just a basic numbers game. How does this work if there are resignations on the board, if in fact the board changes? How can you ensure, with a flexible number of people on the board, that the majority is maintained? If in fact the wrong people resign in terms of quota, what happens to the majority and therefore what happens to the legal ability of the board to act? I wonder if the ministry could help us with that.
Ms Linda Perlis: The section as it's now drafted provides for a flexible number, six to 12, as opposed to the new proposed nine to 12, so there is the same degree of flexibility. There is also the provision in subsection (5) for the Lieutenant Governor to appoint a replacement. So there are mechanisms within the section to address the concerns you've raised.
Mr Brown: I understand that, but Mr Malkowski indicated to Ms Sullivan that the difficulty with going to nine was the difficulty with replacements and that often just the practicality of doing that takes some time. So the practicality of dealing with replacements, whether it's six or nine --
Ms Perlis: Can I just interrupt for one sec? I think, in fairness to Mr Malkowski, he hadn't yet seen the replacement motion and he was speaking to the original motion and that's what the source of the confusion is. Mr Malkowski was attempting to respond appropriately to the original motion, which stated that there be a fixed number. He hadn't yet seen the replacement motion, which provided for the sliding nine to 12.
Mr Brown: It's sliding six to 12 in the --
Ms Perlis: Correct.
Mr Brown: I'm just having a little trouble. I understand the difficulty with replacements, and the point you made is well taken. What happens if the wrong people on the board, for whatever reason, withdraw from the board? The majority is then in question. I'm not particularly talking to Ms Sullivan's.
Ms Perlis: I understand.
Mr Brown: It doesn't matter which one you use, you've got the same problem. Does the board then lack legislative authority because it lacks the appropriate majority? That's the question I'm putting to you.
Ms Perlis: I'll have to seek some advice on that. I'm not entirely sure of the answer at the moment. I can come back to you with an answer to that.
Mr Jim Wilson: Perhaps now that Mr Malkowski is looking at Mrs Sullivan's amendment we could have the government's comment again, because legal counsel just indicated his comments were directed to the original.
Mr Malkowski: Perhaps at this point further discussion needs to take place, so I would recommend we stand down this motion.
The Chair: Do we have unanimous consent to stand this one down? Agreed.
The next one is the Liberal motion on subsection 5(5).
Mrs Sullivan: Mr Chairman, I'd like to withdraw that motion.
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Section 6:
The Chair: The next one will be the government motion on subsection 6(1).
Mr Brown: So we don't waste a lot of time, can we stand this one down as we wait for a discussion of the previous motion that was just stood down, subsection 5(2)? They obviously interrelate.
Mr Winninger: No they don't. Your own members agree that there should be a majority.
Mr Brown: The only question I have is that given the point I just made -- and we don't know the answer to that -- it may be that the wording of this section has to have some additions to it. I'm not objecting to the section, other than to say it may need a little work to be massaged to make subsections 5(2) and 6(1) work together, and the decision on subsection 5(2) hasn't been taken. I'm not objecting to the principle; I'm just objecting to the workability.
Mr Winninger: What did your notes say?
Mr Brown: You don't want to know.
Mr Stephen Owens (Scarborough Centre): Let's share the humour over here.
Mr Winninger: My point is that the majority of the members being vulnerable persons is unaffected, in my view, by whatever we do to subsection 5(2). The majority will still remain supreme, so I'm not sure why we'd need to stand that one down.
Mr Jim Wilson: We don't. Let's keep going.
The Chair: Okay. We're on government replacement motion on subsection 6(1). Any comments?
Mr Malkowski: The original subsection 6(1) motion is withdrawn. We're discussing now the government's replacement motion, right?
The Chair: Which was moved yesterday.
Mr Malkowski: All right, fine.
Mr Sterling: This motion has been moved. Basically the government is now saying that the majority of the commission shall be persons who have a physical -- I'm paraphrasing a bit -- or mental disability or an illness or infirmity likely to result in a physical or mental disability, or they are 65 years of age or older.
I don't think we can discuss these motions in isolation. I have put forward an amendment, and my motion was tabled yesterday as well, which would add to that a second clause which would guarantee that one third of the members would be family members of vulnerable people, non-professional groups who provide care to vulnerable persons --
Mr Wessenger: On a point of order, Mr Chair: I'd like some clarification, because we're on government amendment 6(1), and there's also a PC motion 6(1) and a Liberal motion 6(1), alternate 1 and alternate 2. Perhaps the clerk could indicate whether we're doing them in the right order.
Clerk of the Committee (Ms Lisa Freedman): The order we're going to do them in is, first, the government replacement motion.
Mr Wessenger: That is the proper order.
Clerk of the Committee: Right. If that passes, we will then proceed with the PC motion. If that passes, we may then have to rewrite the Liberal motion before we can consider that. But that will be the order: the government replacement, PC, then Liberal motions to that section.
Mr Jim Wilson: Because our motions deal with the reprint.
Mr Wessenger: I'm sorry. I was under the impression that on previous occasions we've dealt with opposition --
The Chair: I agree this is a little difficult, and we'll try to sort our way through this. Further discussion.
Mr Malkowski: Focusing on the government replacement, I just want to make sure we are clear now and that we know which motion we're dealing with.
The Chair: Yes we are. Comments?
Mrs Sullivan: Like Mr Sterling, I have difficulty -- I know this is a strange process we're going through -- in dealing with the government motion in isolation from the recommendations that have been made by others.
I applaud the government for assuring that on the commission there will be at least some representation from people who are over 65. Clearly, this is a component of our population which has a high level of vulnerable people, and I think that's useful. None the less, given the complexity of the makeup of the commission, this could mean there is only one person on a maximum 12-member commission who is over 65 and who is vulnerable in one category -- or who may not be vulnerable, depending on where he fits into the quotas -- or disabled in those areas.
It seems to me that it would be useful to look at the recommendation I've put forward before we accept the government's amendment, which makes a minimum requirement of at least two members of the commission who are 65 years of age or older, in which case there is a place that's continuing, that's understandable. We know the majority of the members of the commission shall be people who have had a physical or mental disability.
I think we virtually all agree with that first criterion, to ensure that there is a broad representation, given the nature of areas in which senior citizens may be vulnerable. I think it's useful to have a stronger statutory representation for seniors. I don't think the government's motion does that for us. I would prefer to see two members who are guaranteed to be over 65 years old sitting on the commission.
Mr Jim Wilson: In our discussion on section 5, I think it was Mr Malkowski who indicated that the government would not be amenable to any family members on this commission. That's the crux of both the Liberal and PC amendments, so I think we should clear the air right now. I want to know why the government is so opposed to having family members on this commission.
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Ms Carter: The answer to that is very simple. The main point and thrust of this legislation is to empower vulnerable people, and we are watering down that principle if we have family members or care givers on the commission. As I pointed out yesterday, we are having an advisory committee on which those people may be represented. But I think any backing off on our part on the composition of the commission itself would be seen as a betrayal of the people we are trying to represent, and I think rightly so. Also, the government motion does leave the way wide open for there to be two or more persons over 65 on the commission, so I don't see any problem with that.
Mrs Sullivan: I can't tell you how specious I believe the government's arguments are with relation to the inclusion of organizations that represent family and friends of vulnerable people; a minimum number, outside of the majority who are or have been disabled. It's ludicrous to me to think that the government believes that families and friends and organizations which are set up as support groups for vulnerable people do not understand the issues associated with the vulnerability, the very practical issues associated with housing, with vocational services, with health care delivery, and are not dealing with those issues on a daily basis in association with and as part of the lives of people who are part of their families or part of their community and who are vulnerable. It is just absolutely incomprehensible to me that the government believes that families should be so excluded from the decisions of a commission which is set up to assist people in making their own way and in receiving advocacy services. It is absolutely downright ludicrous that the government is proceeding in this way, and that it does so by saying: "We can't accept families. We don't believe families have a place in decision-making or participation in the work associated with empowerment of vulnerable people." That is sheer nonsense.
Mr Winninger: I was just going to comment, in addition to the remarks of Ms Carter, that the legal text does not exclude family members from serving on the commission, whether Alzheimer's or Friends of Schizophrenics. They're not specifically excluded, so to say that they are specifically excluded is specious in itself.
Mrs Sullivan: The point is that they are not specifically included, and the words we have heard at this table, not only today, but yesterday and previously, indicate that there is an antipathy to the participation of organizations representing the family and friends of people who are vulnerable. That is very clearly the policy direction of this government. You don't trust families and you don't trust friends.
Mr Sterling: Ms Carter's statements really bother me, because basically what she's told the committee today is that it's not a majority of the committee that is to be made up of people with physical or mental disabilities or an illness or 65 years; it's all the committee. It's not a majority any more; it's all the committee. So what we're doing in the opposition is trying to determine what in fact is the intent of the government. If the intent of the government is to have all of the commission from this group of people, well, then say it. Let's say all of these people are that way.
My amendment says that the majority of them or up to two thirds would be from this group of individuals, and the other third would be from the people who will be required to provide the services in general and are closely associated with vulnerable people in another manner.
Now, if you want to set up the commission so that it is always fighting with the advisory committee, then I suggest you put all members of the commission from the one side and all the people on the committee from the other side, if you want them fighting like cats and dogs as we proceed in setting up this commission. Because that's what you'll get.
It seems to me that the most reasonable thing for the government to do in setting up this commission is to give the bias, of course, towards those people who are affected, give them empowerment in terms of the commission, give them two thirds of the seats. But on the other hand, guarantee the families, guarantee the providers one third of the seats, so that when the commission makes its ruling, it will hear the other side. When they're drawing the rules, when they're drawing the code of ethics, they will have that expertise at the table of people who are on the ground and are in fact going to be required to live with what the advocates will be going out in the field and doing.
I can't understand Ms Carter's suggestion that all these people should be from the one group, and that is what she said to the committee a few minutes ago. If that is not the case, then there should be no reluctance on the part of the government to at least guarantee that one third of the panel come from the other part of the issue.
Mr Malkowski: There are two points I'd like to clarify. You've been talking, first of all, on the issue of, we have to look first at the advisory committee. The whole appointment to the commission comes from nominations as well, so there's nothing that will stop a group from nominating a family member. What's important is that the vulnerable individuals themselves are choosing their own representatives to sit on the commission, and that's how the appointment process is set up.
Ms Carter: I think my point is similar to Mr Malkowski's, that we all know that the appointment is set up in section 13 and that eight of the appointments are decided by these designated groups and that, as Mr Malkowski said, there is no limitation placed on whom those groups may select. So if I gave any impression to the contrary as to the actual final composition of the commission, then I would like to withdraw anything that would lead to that impression. The point is that it's the advisory committee that picks the nominees, and I believe the minister has three appointments.
The Chair: Further comments? Seeing no further comments, all those in favour of the replacement government motion on subsection 6(1)? Opposed? All members have to vote. Mr Winninger, you didn't vote.
Mr Winninger: I am sorry, I was reading. I'm voting in favour of the government's substitute motion.
Motion agreed to.
The Chair: Noticing the time, is there anybody who would like to move recess for lunch?
Mr Jim Wilson: Could we finish the section, Mr Chair?
Mr Sterling: Perhaps it would be more appropriate if I could go next, because mine tails immediately on to the other one.
The Chair: Mr Sterling moves that section 6 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:
"(1.1) At least one third of the members shall be persons who are family members of vulnerable persons, non-professional persons who provide care to vulnerable persons or health and social service practitioners who provide services to vulnerable persons."
Mr Sterling: I'm adding to the government motion, which was just approved a minute ago. I think my motion is self-explanatory. We have just voted that the majority of the members of the commission will be people who have or have had a physical or mental disability or are 65 years or older. My motion only secures the other part of the equation in the makeup of the commission, and that is that one third of the board be made up of the other side of the equation, so that if there are six members, two members would be from the other part, if there were nine members, three members would be from the other part, and if there is a full board of 12 members, you would have four members from the other part.
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I think this motion should be supported in order to give the commission a balance, I guess, at the commission table, to reach decisions which are heavily weighted in favour of the bias that they're supposed to have but that will also be fully cognizant of the other arguments by the people who have to serve the advocates who are out in the field. I think it would assist the commission in being successful in meeting its objectives under Bill 74.
The Chair: You have withdrawn your old motion?
Mr Sterling: Yes. I withdraw the former motion.
The Chair: Comments? Mr Wilson.
Mr Jim Wilson: I think Mr Malkowski was first, Mr Chair.
Mr Malkowski: Sir, as a point of clarification, withdrawing which motion?
The Chair: He withdrew the one from yesterday and now has a new motion to cover the previous one.
Mr Sterling: Basically, my motion yesterday included what we have just accepted at the committee, so that I could not repeat again or include again what we have already approved, and we just approved that a minute or two minutes ago.
Basically, I am adding to that 6(1) by saying that we have taken 6(1), the government motion that has been passed by the committee, and I am adding to it a rider that a third of the commission should be from this other group. If you refer to my motion yesterday, all you have to do is look at clause 2 and you will get the essence of my amendment to 6(1) as it now stands, passed by this committee.
Mr Malkowski: We have already moved an amendment to 6(1) and again, as mentioned, the organizations can nominate family members. Therefore, there may be individuals who are family members who will be nominated and therefore there will be that representation on the commission. So we do not feel there is a need to support this motion.
Mr Jim Wilson: I was just disturbed by what Mrs Carter had said earlier in terms of perceiving this amendment -- and, I assume, the Liberal amendment -- that if they were to accept this commonsense approach to running the commission and to membership on the commission, that would be perceived as caving in, and that vulnerable people would lose the empowerment that this legislation is trying to give them.
I don't think that's true at all. I think that what we're trying to do here is have some assurance, as Mr Sterling has said, that family members will be involved and that non-professionals and other professionals will have an opportunity to be on that commission. Unlike the Liberal motion, which ties the government to two members and two members, this simply gives the government some flexibility by just using the one-third rule. I think it's really a tremendous advantage for vulnerable people that their decisions not be made in isolation, that there be availability to them, on the commission, of the advice and expertise that these other groups would bring to that commission. I think it only makes sense, after all. The government is setting up an arm's-length commission with tremendous powers, unprecedented, and you want to make sure the decisions they make have as much balance and fairness in them as possible. To us, this not only fulfils your obligation and our obligations to vulnerable people but also brings some fairness and some common sense to the proceedings of the commission. I guess it leaves us wondering why you will not support this, I think, very constructive motion.
Mr Malkowski: In response to that point, we have listened to the various presentations that have come before the committee, as well as to the coalition, which has spoken very clearly on the need for a majority of vulnerable and disabled individuals as part of the commission. The Alzheimer's association, as we mentioned yesterday, has said that it is comfortable with appointment to an advisory committee, and I think clearly, having heard various submissions, the majority control has to be with vulnerable people.
Mr Jim Wilson: If I may say, the majority control is with vulnerable people, so that objection is not valid. Are there any other objections that may be valid?
Mr Wessenger: I'd like to go back. This act sets out a procedure for nomination and appointment in section 13. I'll reiterate what I said yesterday but perhaps not as clearly. Each of the organizations named in section 15 has a right to nominate a member of the commission, and one of those, paragraph 6, which is, "organizations representing persons with a neurological disability, illness or infirmity such as autism, Alzheimer's syndrome or traumatic head injury," can nominate an individual to the commission. It's clear that that person would likely be a family member. It would be clear, so you'd have at least one family member under that section, and I think the amendments detract from this whole nomination process through the appointment of the advisory committee. It would take away from the whole principle of the act, so that would be my objection to the amendments.
Mrs Sullivan: In his comments, Mr Wessenger has indicated that he believes that including family members on the commission would take away from the whole principle of the act and that family members would have a guarantee of a place through the nomination process. In fact that's incorrect.
He uses Alzheimer's patients as an example. An Alzheimer patient can be in various stages of that illness. The person who is most vulnerable as an Alzheimer's patient could not be included on the commission without the involvement of an advocate, and the organization which is doing the work in terms of support and attempting to assist patients in the early and latter stages of the illness with coming to terms with new living styles and new rights requirements is not going to be guaranteed a spot. There is no guarantee.
The government members seem to assume that because people may be nominated they will automatically be included, no matter what category they're covered in. These organizations may also, on the other hand, not name someone, not recommend someone who is a family member or a friend or who's been involved in care giving. They may decide not to put those recommendations forward, and the minister has no alternative other than to appoint people whose names are put forward by those organizations. The only constraint on that relates to geographical and cultural sensitivities.
There is absolutely no guarantee -- in fact, it is more than conceivable that not only the majority but 100% of the commission will be made up of people who are disabled and that there will be no people who are family or friends of vulnerable people.
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Mr Sterling: I don't know how long we can go on with this particular argument, and I think we should vote fairly soon. It's just that you set up a committee to nominate these people, and you then have the people either appointed or not appointed by the minister. It seems to me that when you're setting up a fairly obtuse appointment system, it would be most prudent for members of the Legislature to dictate their intention as to what the makeup of this commission is to be.
If in fact the government's intention is that it wants not a majority but all members of the commission falling within the definition of subsection 6(1), as set out for the majority, then I think you should say that to the advisory committee which is going out and looking for these people; you should be clear about whether it's a quarter you want or 30% or a third or whatever. Here we are sitting in the Legislature, and we're going to create this autonomous, or fairly autonomous, board or commission. Surely we as legislators have the obligation to say to all these people who are going to be involved in appointing these commission members what our intention really is, and I don't know what it is. I don't know whether you want seven members who fall within this definition and five that don't, or whether it's 11 and one or 12 and zero.
The advisory committee is going to be sitting around saying: "What did they want us to do? Did they want a third of the board or do they want 25% of the board represented outside of this group, or did they want all of them within this group?" I just think that when you set up a process like this, the advisory committee which is going to be putting forward these nominations to the minister should know what the intention of the government is.
Mr Malkowski: To respond to Mr Sterling's point and his concerns, the basic issue we're dealing with here is empowerment and giving that power to the disabled community and organizations to appoint whom they wish to represent them on the commission. They will then choose the people they want to represent them, and the minister will certainly consider what gaps are seen on the commission and can consider that at the time of appointment.
Mr Sterling: I have never heard such bunk in my life. Nobody in this room is denying that the commission should be controlled by this particular group, but if there's going to be so much airy-fairy fooling around in between about who is nominated to sit on the advisory committee, who will sit on the --
Mr Malkowski: On a point of order, Mr Chair: I wasn't finished my comments. My last comment after saying that the minister would consider any gaps during appointment was that we should then call the question. I think the microphone may have cut the interpreter off.
The Chair: That's not a point of order.
Mr Malkowski: On a point of privilege, Mr Chair: At the end of the comment I was making, the microphone was cut off. I had not finished my comment, which was to call the question. The next microphone came on beforehand. There is a bit of lag time before the interpreter is finished.
The Chair: I agree there is a bit of lag time, Mr Malkowski, but I had the perception that you were done, and there was nobody else speaking. Mr Sterling.
Mr Sterling: I'm not going to be much longer anyway. I really think you're making a mistake on this in terms of not guaranteeing those other people some kind of representation on the commission.
Mrs Sullivan: I am really puzzled at the way the government is digging in its heels on this issue.
Mr Malkowski: On a point of privilege, Mr Chair: I feel offended by this. I had not finished speaking, and I had called the question.
The Chair: Mr Malkowski, I've already ruled on that. I thought you were done and I did proceed to the next person. I will put you back on the list of speakers, if you'd care --
Mrs Sullivan: Mr Chairman, perhaps it would be useful to advise Mr Malkowski that he can't call the question, and therefore that suggestion is out of order.
The Chair: He can call the question when he has the floor again.
Mr Jim Wilson: Under the rules, he can't comment and then call the question. He has to call the question as the first thing he does when he gets the floor.
The Chair: Agreed. Mrs Sullivan.
Mrs Sullivan: I started by saying I am very puzzled at the government's intransigence on this issue. It seems that even government members are kind of uneasy and trying to rationalize what is clearly -- what do you call it? some kind of boots -- jackboot thinking.
Mr Sterling: Don't look at me.
Mr Jim Wilson: Don't look at us. Mike's got a pair.
Mrs Sullivan: I want to ask very seriously if in fact the reason for the government's intransigence in this area is whether there are specific organizations, such as, by example, the Ontario Friends of Schizophrenics, that the government does not want to be involved in the commission or in its activities in any way. I would like that answer.
The Chair: Mr Malkowski.
Mr Malkowski: I'd like to call the question so we can maybe move ahead with the vote.
The Chair: One piece of clarification, first, from the clerk.
Clerk of the Committee: I just want to clarify that if the question is put, you're putting the question on this section that was amended, and all subsequent amendments to the section now fall. I just want to clarify that that's what we're doing right now.
Mr Sterling: What is that?
Clerk of the Committee: When you put the question, you put the question on the section, with any amendments that have been passed to this point. So we're now actually voting on section 6, with the one government amendment that has been carried. Any further amendments to this section fall.
Mrs Sullivan: Mr Chairman, we have concurred in a process where no full sections will be dealt with until the end of the bill, that every section will remain open until the conclusion of the debate so that all the amendments, with all of their interrelating factors, can be placed at the same time. We are not dealing with any section in full now, and if that is the intention of the parliamentary assistant in putting his demand to call the question, then I want to tell you, I'm going to call for a 20-minute vote and I will continue to break all the rules and we will have a 20-minute break before every single vote of this committee. This is clearly out of all sense of agreement of this committee.
The Chair: I would agree with you. We have laid down the ground rules at the very beginning; I made a statement. So I will rule this motion out of order. Further comments?
Mr Winninger: Let's move on.
The Chair: Seeing no further comments on the PC motion, all those in favour?
Mr Sterling: Could we have a recorded vote?
The committee divided on Mr Sterling's motion, which was negatived on the following vote:
Ayes--5
Brown, Eddy, Sterling, Sullivan, Wilson (Simcoe West).
Nays--6
Carter, Malkowski, Morrow, Owens, Wessenger, Winninger.
Mr Mark Morrow (Wentworth East): Can we now move to recess until 2 o'clock this afternoon?
The Chair: All those in favour of recessing until 2 o'clock this afternoon? Opposed? Carried. This committee stands recessed until 2 pm this afternoon.
The committee recessed at 1220.
AFTERNOON SITTING
The committee resumed at 1408.
The Chair: I call this meeting back to order. We'll see if we can't proceed as smoothly as we did this morning, with the indulgence of the committee.
Mr Brown: We're with you, Mike.
The Chair: We're now on the Liberal motion on subsections 6(1), (1.1) and (1.2). Comments?
Mr Malkowski: I would like to ask for clarification. We're discussing the Liberal motion currently?
The Chair: The Liberal motion, alternate 1.
Mr Malkowski: I would like to make a comment on that motion. We would be unable to support this motion, as we are not prepared to give up the principle of empowerment and giving seats on the Advocacy Commission for families and care givers.
Mrs Sullivan: I don't want to go around the mulberry bush again on this, but enhancing empowerment is frequently done with the assistance of family and friends. That's what this amendment is designed to encourage and in fact require.
The Chair: Further comments? Seeing no further comments --
Mr Owens: Are you calling the vote at this point? I'd like to ask for a --
The Chair: Just as soon as comments and questions are done.
Mr Owens: Anybody have a comment?
The Chair: I thought you were.
Mr Owens: I decided to assume the chair.
The Chair: Seeing no further comments or questions we'll proceed to the question. All those -- Mr Owens?
Mr Owens: I'd like to ask for a 10-minute recess, Mr Chair.
The Chair: A 10-minute recess? Committee will stand --
Mrs Sullivan: Ten or 20? Hello?
Mr Owens: Twenty.
The Chair: Twenty?
Mr Jim Wilson: Could we have an explanation?
Mr Winninger: We have important things to discuss.
Mr Jim Wilson: You just had two hours.
The Chair: This committee will stand recessed until --
Mrs Sullivan: Could we just stand this down?
Mr Sterling: Can we just stand it down until they have a number here?
Mr Owens: That's fine. We quite agree to stand it down.
The Chair: Could I have unanimous consent to stand this down? Agreed.
Mrs Sullivan: Does this mean that there's some weakening here? Some enlightenment?
In that case I assume that my alternate 2 motion, subsection 6(1), should also be stood down.
The Chair: Yes.
Mrs Sullivan: And alternate 2, 6(1.1)?
The Chair: Yes.
Section 7:
The Chair: Now we'll proceed to, on the government reprint, clauses 7(1)(b) to (d), and we'll proceed to the Liberal motion on subclause 7(1)(b)(ii).
Mrs Sullivan: I spoke to this yesterday. This is comparable to the revision to subclause 7(1)(b)(ii) and I don't think we need any further discussion of it. We've had an indication that both the third party and the government support this amendment.
Mr Malkowski: Can we call a 10-minute recess?
The Chair: The vote hasn't been called, so we can't call a recess until we're ready to call the vote.
Mr Malkowski: Okay.
The Chair: Unless you want a different recess.
Mr Malkowski: No, then I'll comment on 7(1), on the Liberal motion.
We won't be supporting the motion because we feel that --
The Chair: This is the Liberal motion, subclause 7(1)(b)(ii).
Mr Malkowski: Oh, I apologize for that. I was on the wrong motion. Sorry, we will be voting in support of your motion because it does in fact conform with subsections 17(1), 18(1), and 24(2), (3) and (4).
The Chair: Further comments? Seeing no further comments, all those in favour of the Liberal motion, subclause 7(1)(b)(ii)? Opposed?
Motion agreed to.
The Chair: Next on the Liberal motion, clause 7(1)(d).
Mrs Sullivan: Once again, I spoke to this yesterday. Just as a reminder that the function of rights advice under the new Consent to Treatment Act is now separated from the rights advice and other advocacy services required under the other acts and there are different regulations associated with that. Therefore, we felt it important to separate the rights advice required by the CTA from the other requirements. We discussed this yesterday and I think there was to have been an interministerial discussion relating to this matter.
Mr Owens: My understanding is that there was going to be some presentation here today -- is that not correct? -- with respect to that issue from, whether it was Citizenship or Health. Were we not going to have that opinion heard today?
Mrs Sullivan: No, they were just going to have a chat.
Mr Sterling: As I understand it, the only requirement under the four acts that are listed here -- I'm not even sure under the Mental Health Act myself. But under the Consent to Treatment Act, Bill 109, and Bill 108, there's no requirement of advocacy services under those two acts. Am I right or wrong on that? There's rights advice required under Bill 109. Mr Fram, is there any requirement for advocacy services under Bill 108?
Mr Winninger: Mr Fram confirms that, yes.
Mr Sterling: There is? Okay.
Ms Carter: I think that leads on to why we would decline this motion, because it could lead to future problems because it wouldn't permit advocacy services other than rights advice to be provided under Bill 109.
Mrs Sullivan: There's no provision for advocacy services under Bill 109; there's provision for rights advice as a requirement of that bill. Under the other bills there are both rights advice and advocacy services, and that is why this provision is written that way: to provide for the rights advice in Bill 109 and to provide for the rights advice and other advocacy services which are required under the amendment bill, Bill 110, the Mental Health Act and the SDA. I think Mr Fram will concur that this is in fact appropriate.
Mr Malkowski: We wouldn't be able to support the motion, because we don't see that there would be any benefit derived from the amendment. In fact, we feel there is a possibility that there would be a possible future loss, due to the fact that it wouldn't permit advocacy service other than rights advice under consent to treatment.
Mrs Sullivan: I think the statement that has just been made by the parliamentary assistant to the Minister of Citizenship reflecting on the Consent to Treatment Act deserves a policy response from the parliamentary assistant to the Minister of Health. Bill 109 has no provision for advocacy services other than rights advice. Rights advice is specified as the nature of information that is conveyed to people who are determined to be incapable. Rights advice is the only service offered and included under Bill 109. Advocacy services would have to be obtained under the provisions of Bills 74 and 108, and it would be quite possible to do that. But under Bill 109, it's rights advice.
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Mr Wessenger: I think it's appropriate that this one be stood down, as I would be interested in reviewing it with Citizenship. I'd ask that it be stood down.
The Chair: Do we have unanimous consent to have this one stood down? Agreed.
Next, Liberal motion 7(1)(h).
Mrs Sullivan: I spoke to this yesterday as well. This amendment would mean that the entire section would read, "acknowledge, encourage and enhance individual, family and community support for the security, rights, needs and wellbeing of vulnerable persons." We feel this is an important duty of the commission, and we hope the government will see fit to accept this particular section.
Mr Malkowski: We will not be able to support this amendment because it actually can be detrimental to the individual's right to choice and empowerment.
Mrs Sullivan: How would that be? I'd like some explanation of that response. It sounds fairly flip to me.
Mr Malkowski: What's important is that we're talking about the freedom of that individual vulnerable person to choice and empowering that individual.
Mrs Sullivan: This kind of explanation is simply inadequate. We are asking, as one of the commission's duties, that the commission be required to "acknowledge, encourage and enhance individual, family and community support for the security, rights, needs and wellbeing of vulnerable persons." How does that interfere with freedom of choice? If my additions mean there is interference with freedom of choice, then the government's first position in clause (h) also negates freedom of choice and the entire clause should be removed. Where are they coming from?
Mr Jim Wilson: Hold on to your seats, but I'm going to support the government on this motion. To be fair to Mr Malkowski, his first explanation this morning, when similar wording came up in another clause -- and it was a compelling argument -- was that someone may trample on the rights of an individual using the excuse that he's tending to that person's needs. To be fair to Mr Malkowski, I think that's what he probably means to say at this time, and I agree with him. Mr Sterling and I split on it this morning, and Norm may even be on side this afternoon; I'm not sure.
The Chair: Further comments? Seeing no further comments, all those in favour of the Liberal motion on 7(1)(h)? Opposed? We all have to vote, Mr Sterling.
Motion negatived.
The Chair: Next, we'll move to government reprint 7(1)(k) and 7(5), in which case we'll go to the Liberal motion on 7(1)(k).
Mrs Sullivan: As I indicated yesterday, this amendment should be considered in association with my amendments that are being put forward on section 36. We could either deal with both of those now or we could deal with them both in the order of 36. I don't know how you want to proceed.
The Chair: Would you like to have this stood down until we go to 36?
Mrs Sullivan: It's fine with me.
The Chair: Do we have consent for that? Agreed? Okay.
Also, 7(1)(k) will be stood down? Alternate 2?
Mrs Sullivan: No. That one does not have to be stood down, the alternate 2.
The Chair: Okay. We'll go to Liberal motion on 7(1)(k), alternate 2.
Mrs Sullivan: This motion is to once again acknowledge that there is a separation between the role of advocates, whose duties may include the provision of rights advice, and those individuals who are only providing rights advice, as required under Bill 109. We wanted to make that separation to ensure that there was an understanding that there were two people for whom qualifications, standards and codes of conduct, by example, would be required and, later, whose training requirements may differ.
Mr Sterling: I have a question. We heard conflicting testimony here. Is the Advocacy Commission going to hire people who are called "rights advisers"? On the one hand I thought I heard people who were involved with the advocacy movement say that was going to be the case, and on the other hand I think I heard the government say yesterday that was not the case. Can I have an answer to that question?
Mr Malkowski: I think the issue is that this section is not actually defining rights advice at all in this act. In fact, we're talking instead about rights advice under advocacy service as incorporated in advocacy service. If we were to incorporate that, we would have to have an exhaustive re-examination of the act and to determine all the situations in which rights advice should be mentioned, and in fact rights advice is actually a function. We're not dealing with the person himself, the rights adviser.
Mr Sterling: All the people who will be giving rights advice, hired by the commission, will be advocates. Is that a correct statement?
Mr Wessenger: Yes. I'd just like to point out that section 2 of the act defines an advocate as a person who's authorized under subsection 7(4) to provide advocacy services on behalf of the commission. Then if you look under the definition of providing advocacy services, clause 7(1)(d) says "provide rights advice." So anyone designated to provide rights advice under this act will be deemed an advocate under this act. Consequently, they're covered.
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Mrs Sullivan: I think we're really going back to the fundamental conflict between Bills 108 and 109 and Bill 74. If you look at the definition of rights adviser under 109, there is an area which says that in the prescribed circumstances a person who is a member of a prescribed category is a rights adviser; that is, in addition to a person who is authorized under the Advocacy Act, 1992, to provide advocacy services on behalf of the commission.
It's apparent that Bill 109 envisages rights advisers who are not only those who are providing advocacy services under Bill 74. How are they trained? What is their code of conduct? What standards do they have to follow? does that come from the commission? Does that come from anywhere? Because there's no other place that will come.
The point is, who is responsible for this new group of rights advisers who bear no relationship to the commission? Who is responsible for their training, their code of ethics, their standards, their accountability? We know how they can be appointed, but there are all sorts of other things we don't know in terms of minimum qualifications and other things. We asked the parliamentary assistant to the Minister of Health yesterday to inform the committee on basically the policy directions. Where are those people going to be coming from? Are they going to be employees? Could they be employees, by example, of hospitals? If they are, to whom are they accountable? I don't think we can deal with this section and that whole issue unless we refer to Bill 109 and the requirements for specific rights advisers, which are included under their regulations.
Ms Carter: It's my understanding that all rights advisers would come under the Advocacy Commission and therefore would be subject to all the same --
Mrs Sullivan: Not unless you include them.
Ms Carter: -- requirements that an advocate would have to fulfil.
But having said that, there could be different categories of advocate. Some people might be rights advisers and might be specially accredited to do rights advice rather than to be a full advocate, but they would nevertheless come under all the provisions of the commission as far as codes of conduct and so on were concerned.
Mr Wessenger: First of all, with respect to this particular amendment, there is the problem in the fact that this act does not define rights advisers, and if you were to incorporate this motion, it would involve an exhaustive re-examination of the whole act to determine all other situations where rights advisers should be mentioned.
Second, I think the discussion with respect to role of rights advisers on the Consent to Treatment Act properly belongs under that act and not under this.
Third, I think it might be helpful to all members if counsel were to give the interpretation of this act with respect to the question of the accountability of rights advisers under this act. That might be of some assistance to members of the committee.
Ms Perlis: Succinctly, as Ms Carter has stated, that rights advice is not defined in this act. If it is required to be provided within this act, it will be provided as an advocacy service and therefore will fall under all of the controls, strictures and requirements that advocates are to conform to as determined by the commission.
Mr Winninger: I just wanted to state for the record, as Ms Sullivan referred to our bill, Bill 108, that our bill is quite clear in defining advocate as being authorized under the Advocacy Act. We don't mention rights advisers. The authority of the advocates who appear in Bill 108 is pursuant to Bill 74. I don't believe there's any problem there.
Mrs Sullivan: There is a problem with 109.
Mr Winninger: Right, but you mentioned 108 and I just wanted to say what I said for the record.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the Liberal motion on clause 7(1)(k), alternate 2? Opposed?
Motion negatived.
The Chair: Now we'll go to the Liberal motion on subclause 7(1)(k.1)(i.1).
Mrs Sullivan: There are three or four amendments that relate to this entire issue that we have been discussing, and this amendment is put forward to assist in once again clarifying the interaction and the government's policy intent with respect to rights advisers. The counsel for the Minister of Citizenship has indicated that if advocacy services are required under Bill 74, they will be provided by Bill 74. If rights advice is required in situations under Bill 74, they will be provided by Bill 74.
We have a problem in that we have rights advice required by Bill 109 that is separate, and apparently by inference, from what the counsel has indicated, those people will not be subject to the authorization and the standards and training and so on of Bill 74. Yesterday I asked for an indication of the government's policy intent with respect to rights advisers, and I think that, before we go any further, we must have that understanding with respect to Bill 109.
If the government's policy intent is that on occasion a nurse in a physician's office could be authorized to provide rights advice, if the government's intent is that certain employees in a hospital could be authorized from time to time to provide rights advice, then perhaps we should make that very clear in Bill 109 and separate the rights adviser role completely into 109 that's required for 109.
If that is not the intent and if there's an intent to roll back the 109 rights adviser into the Advocacy Commission and under the authorization and guidelines and standards that are put forward by the Advocacy Commission, then I have a series of amendments that will in fact allow that to occur. But what we need and want is a coming clean on where the government is going in terms of the independence of employment of rights advisers under Bill 109.
Mr Malkowski: We won't be able to support the motion because it's completely contrary to the philosophy of the act that advocacy services should not be provided by care givers. However, there is nothing that would preclude the commission from contracting with an individual who is not a care giver, if it chooses to do so.
Mrs Sullivan: Does the parliamentary assistant to the Minister of Health concur? What is the policy intent with respect to 109?
Mr Wessenger: I would concur that the intent of this legislation is to have rights advisers not be employed by a faculty of a controlled-access residence.
Mrs Sullivan: So under no circumstances, you are saying, will rights advisers --
Mr Wessenger: That's the intent of this package of legislation as I would interpret it.
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Mrs Sullivan: Under Bill 109 a rights adviser will never be employed in the designated category in positions, for example, of being a nurse in a physician's office, being a staff member of a hospital, being a care giver in a nursing home. Those people will never, ever, in any circumstances under Bill 109 be considered or allowed to be a rights adviser. That's the information that we want.
Mr Wessenger: That is the present intention, yes.
Mr Jim Wilson: Just getting back to the motion at hand here, I would like to have a clarification from the mover of the motion of exactly what the intent is. As I read this, Mrs Sullivan, you want to replace 7(1)(k.1), replace all of what appears in the reprint, with your (i.1). Could you explain the reasoning behind that?
Mrs Sullivan: Just adding a clause.
Mr Jim Wilson: You're adding a clause?
Mrs Sullivan: Adding subclause (i.1).
Mr Jim Wilson: I see. You're adding (i.1) type thing. I still don't get the gist of it, though, Mr Chairman, if someone could provide an explanation.
Mr Sterling: I oppose this amendment because basically I would hope that the arrangement under Bill 109 could be a little less formal than having the Advocacy Commission involved in every rights advice situation. Therefore, I would not support this amendment.
Mrs Sullivan: Given the final policy confirmation from the parliamentary assistant to the Minister of Health, I will withdraw this amendment.
The Chair: Okay, that amendment's withdrawn. Next, we'll go to the Liberal motion, alternate 1, on 7(1)(k.2).
Mrs Sullivan: Once again, this amendment would have to be considered with proposed amendments to section 15.0.1, so I'd like to stand this down so that it could be considered with those and with the Conservative proposal for amendment at the same time.
The Chair: Do we have agreement to stand this one down? Agreed.
Mr Wessenger: I notice in the reprint there's probably a typographical error or some type of error, and I don't know whether it needs an amendment or not. It's on (k.2). The reprint says, "establish, subject to the approval of the Minister of Citizenship," and the "of Citizenship" really should not be in there. I don't know whether than can be removed as a typographical error or --
Mr Winninger: We stood down that section earlier so they could bring them all into line.
Mr Wessenger: I just wanted to bring to the attention that it's an error of the nature of a --
Mrs Sullivan: Mr Chairman, I have an amendment that does exactly that.
Mr Winninger: I thought we just stood down the issue so that the ministry could bring all the sections into line rather than doing it piecemeal.
Mrs Sullivan: We didn't know why the request was made to stand it down, but I have included in my amendments --
The Chair: That's on Liberal motion, alternate 2, on 7(1)(k.2)?
Mrs Sullivan: Yes.
The Chair: It is slightly different. We'll proceed with 7(1)(k.2), Liberal motion, alternate 2.
Mr Jim Wilson: Are you sure we didn't cover that already, Mr Chairman?
The Chair: Alternate 2? We stood down alternate 1, now we're on alternate 2. Any comments? Mr Owens? No comments. Mr Malkowski.
Mr Malkowski: I ask that we stand this down.
The Chair: Do we have unanimous agreement to stand this one down? Agreed. Liberal motion, alternate 2, clause 7(1)(k.2) has been stood down.
We'll move to Liberal motion, clause 7(1)(k.3). Comments?
Mrs Sullivan: The intent of this motion is simply to add rights advisers in when they're required for training programs.
Mr Sterling: I think it best that we not mix rights advisers in with this legislation, period, and the term "rights advisers." I think as far as I understand the legislation now, these are advocates. Advocates are going to be advocates and there isn't going to be anything less than an advocate and therefore "rights advisers" is a more appropriate term under Bill 109. Therefore, I would oppose this particular amendment.
Mrs Sullivan: I'll withdraw this motion and the next one.
The Chair: Liberal motion, clause 7(1)(l) is also withdrawn. We'll now proceed to Liberal motion, subsection 7(2).
Mrs Sullivan: This amendment deals with an issue which was before the committee on several occasions and the questions have been raised on several occasions. While we all understand the necessity and in fact the importance of advocacy being independent from the provider of services, my sense is that the commission would be unduly limited if it could not, from time to time, involve organizations which do provide other services, whether they're in housing, whether they're vocational, whether they're legal; they might be fund-raising services. In terms of its freedom and ability to involve others who have expertise in certain areas, who've had experience in certain areas, in regions perhaps where there is limited ability for people to form organizations on their own, because there perhaps might not be 20 people who could form an organization that would be recognized by the commission as able to provide advocacy services, there may as well, because of the limitations here, be a duplication of service.
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It seems to me that with the commission's power in determining its own approach and rules with respect to the provision of advocacy services, it can say that advocacy services cannot be provided, by example, within a certain institution by an employee of that institution. However, there may well be occasions when people from that institution would be very useful in providing advocacy services in another context or in another area.
The other concern of course is the geographical limitations, to ensure that services can be available even in the remotest parts of the province, and that's why we've put this amendment forward. I have no apprehensions that the government will support it, but we feel that the commission is going to be unduly limited by not supporting it.
Mr Sterling: I want to support this amendment, particularly for small communities in the province who don't have the luxury of having the kind of agency to provide vulnerable people with advocacy services, because there just aren't large enough numbers to have a multiplicity of kinds of agencies which could provide that kind of service. I don't know why we would want to hamstring the commission with such a restrictive clause.
For instance, it seems to be that a non-profit community agency, which would be providing one kind of service, may be very capable of advocating on behalf of a vulnerable person with regard to another completely unrelated kind of service. I just don't know why the government would want to restrict the Advocacy Commission that way.
It seems to me that the Advocacy Commission would always look for the kind of situation where there could be no conflict at all, but that's operating in the ideal world. If you go out to some of the smaller communities where you have 400 or 500 people living a long way from other areas, the choice then may be no advocacy services, because we have placed this restriction on them. I'm just speaking on that end of it.
Mr Wessenger: I'm going to oppose this motion because of what I understand of the principles behind this Advocacy Act, and that is to create a form of advocacy which does not involve any conflict of interest situation, which is to be a form of secondary advocacy after primary advocacy has failed, and also to preserve many of the existing advocacy services that do exist; it's not really to supplant or replace them.
I think what would happen with this motion would be bringing practically all advocacy services -- or it could be interpreted that way -- under the commission. I look at this act as a secondary form of advocacy only after the primary advocacy has failed or where there's a particular gap that may have to be filled. I would hope that the advocacy services that are now being done by many service providers will continue to be done and this is just an addition, a non-conflict of interest position on top of the whole provision of advocacy services in our society.
That's certainly the principle of it, and I think that principle is very important: to preserve that independence, that secondary role, to ensure that all the existing advocacy services we have provided in our community continue; and we have this on top as a protection, as an addition, as a gap filler. That's why I would oppose the motion.
Mr Malkowski: In response to Mr Sterling's concerns as well as Ms Sullivan's, specifically in relation to the northern areas and advocacy service, what we have to remember is that we have heard specifically from consumers who very emphatically said they do not want to have advocacy provided by care givers, that they want to see that separation and that advocacy be a more independent service. In the northern areas, advocacy can be done possibly through church communities where there's not a conflict of interest between care givers, for example. So there are possibilities that can be considered in the northern regions.
Mrs Sullivan: That's precisely the point. The very example Mr Malkowski has used is an example of the situation that is excluded if this provision remains in. The church group, because there are other services being provided to vulnerable people, will be unable to perform those functions to many of the people in the area. That is precisely the situation that is problematical.
Mr Malkowski: In response to that, the church does not receive government funding; there is not that conflict of interest. They are very much an independent body. There would not be a conflict of interest financially under those terms whatsoever.
Mrs Sullivan: I don't understand what that has to do with the issue. There's no provision in this bill that says anything about government money. This talks about non-profit community agencies, and government moneys have nothing to do with the issue.
Mr Sterling: I just don't understand why you mistrust the commission to make the right choice in picking their agency.
Mrs Sullivan: That's right.
Mr Jim Wilson: And what's best for the local areas.
Mr Sterling: And what's best for the local area. They're going to come to a reasonable conclusion. I trust the Advocacy Commission to make the right decision. They're not going to hire some agency which is going to come in direct conflict with these people all the time. They're going to make the best choice. I don't understand why you want to tie their hands.
Mr Jim Wilson: I want to know what the term "non-profit" means, because in my riding, when we hear that term we grab on to our wallets and we duck. For instance, I've got day care operators making far more money now under the non-profit scheme than they ever did as a private operator, so I want to know what the term means.
Ms Carter: I think the problem here is that we're confusing what you might call informal advocacy -- which is always going to happen: people are always going to give advice; a nurse can give advice, a clergyman can give advice -- with the Advocacy Commission as such. People who are employed by that commission are accredited; other people can give advice as long as they don't claim that accreditation. But anybody who does work under the Advocacy Commission must be seen to be free of any kind of conflict of interest.
I think this is absolutely basic to the philosophy of what we're trying to do, and I believe the Advocacy Coalition itself, which consists of groups who are concerned about this kind of issue, is very strong on this point that the avoidance of conflict of interest is absolutely of prime importance and that we can't give way on that.
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Mr Winninger: Separation of church and state.
Ms Carter: Absolutely.
Mr Jim Wilson: I won't get into that, but I do want an answer to my question, because I hear this in the Legislature and I heard it on the campaign trail and we'll hear it again next time around, all this non-profit and not-for-profit stuff. Perhaps I could ask legal counsel. Is there a definition? Do you register your group? What do you do? Does it pertain to the Income Tax Act?
Ms Perlis: I believe the answer to that question would be that the agency would be incorporated under the Corporations Act as a nonprofit corporation.
Mr Jim Wilson: Under the Corporations Act. Are there any examples? Why the preference for non-profit here? Are there certain groups that will be excluded? Does the parliamentary assistant have any comment on that?
The Chair: Any response? No?
Ms Perlis: There is a requirement that it be a corporation in order to flow funds from the commission to the corporation.
Mr Jim Wilson: I appreciate that.
Mrs Sullivan: I don't want to stay too long with this, but I want people to understand that in limiting the commission, as it has with this section -- when you look at the duties the commission will be authorizing non-profit agencies to do, it includes: to promote respect for vulnerable persons; to provide advocacy services both to people who are capable and incapable of instructing the advocate; to participate in advocacy services in systemic change, to provide rights advice and so on, to ensure that the community development programs are put into place.
With this amendment, none of those activities can be authorized by the commission, can be requested or a contract given by the commission to organizations such as heart and stroke, cancer, diabetes. You'll recall that we had the diabetes association before us. One of the things they do is systemic advocacy, with respect particularly to assistive devices changes; they talked particularly about drivers' licensing issues. If there are broad-based issues such as that, that organization could not be authorized by the commission to assist in providing, in an authorized way, systemic advocacy. It would be just left out; it will not count.
If you want to be inclusive, then you accept my amendment; if you want to be exclusive, you don't.
Mr Malkowski: The legislation does not stop nonprofit organizations from offering that type of service. In no way will it stop those services from being provided. It is not going to stop the diabetic foundation from continuing to provide systemic advocacy.
Mrs Sullivan: The commission won't have advantage of it.
Mr Sterling: We continue to have voluntary agencies who are continually looking at ways to get out of providing hard services. They want to get out of doing that now, and many of them would rather do the advocacy than do the hard, down-on-the-ground work of providing services to cancer patients, and all of the very important work that governments, I don't think, can do as well as they can.
What we're doing here, by excluding them from any kind of government funding with regard to advocacy services, is saying: "Well, you've got a choice. You can get some money from the government if you get out of providing hard services, but you can't get any money if you provide hard services." It's another encouragement for them to dump over on to the taxpayer another hard-core service which is being provided somehow out there by charitable organizations.
I just think it's wrongheaded for the two reasons that I point out. Why not leave the decision up to the Advocacy Commission to make the priority on how they're spending their money and how they're going to provide advocacy services?
The Chair: Further discussion? Seeing no further discussion, all those in favour of the Liberal motion on subsection 7(2)? Opposed?
Motion negatived.
The Chair: Next we go to the Liberal motion on subsection 7(2.1).
Mrs Sullivan: I withdraw that motion, Mr Chair.
The Chair: Withdrawn.
Mrs Sullivan: And the next motion.
The Chair: And the next one.
Mr Malkowski: You've withdrawn 7(2.1). What was the other motion that was withdrawn?
The Chair: Subsection 7(4.1).
We'll go to the Liberal motion on clauses 7(5)(c) and (d).
Mrs Sullivan: In looking at this, I thought that once again -- and this is a very small point; we don't have to stay for an awful long time on it -- in terms of the public information and education requirements or responsibilities of the commission, it seemed to me that the best approach would be to eliminate, first of all, non-professional persons who provide care to vulnerable persons.
I assume that you're trying to capture people who are in residential services employment or in vocational services employment. Some of those people call themselves professionals, and we haven't defined "professionals," or even if they're non-professionals as a regulated profession.
As well, I think we're missing in this case, for example, people who are lawyers, who may also be providing services, people who are providing housing. Housing is not included here. Certainly those areas are areas that we know require education programs in terms of learning how to deal with and raising awareness of issues facing disabled and vulnerable people.
It just seemed to me a neater way of ensuring that everybody who should know about the issues and the problems. The commission should be conducting communications programs, as it can afford to and within its target funding to do that.
Mr Malkowski: I think Mrs Sullivan's points are very reasonable and well taken and we will be able to accept this motion. We feel it certainly doesn't change the substance of the section, but in fact it simplifies the language. We are happy to support that.
The Chair: Further comments? Seeing none, all those in favour of the Liberal motion on clauses 7(5)(c) and 7(5)(d)? Opposed?
Motion agreed to.
The Chair: With the indulgence of the committee, we'll now have a 10-minute recess. We'll meet at 3:20.
The committee recessed at 1511.
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Section 8:
The Chair: I call this committee back to order. In the reprinted version, government amendment 8(3) is just a deletion, so that'll be reflected when we vote on the whole section later on. We'll now go to the government motion on subsection 8(1).
Mrs Sullivan: Yesterday, when we were going through the initial process here, the government had indicated that it wanted to have interministerial consultation on certain aspects of the bill, of the amendments that were put forward. Today, when those amendments were reput, the government indicated it again wanted consultation. It would be useful for us to know if the government has had that consultation and when it's going to get back to us with information respecting those subsections which have been stood down.
Have they taken their break and consulted, or is this something that's going to occur at some time in the Never Never Land ahead? If it is something that is not going to be before us today, we in fact can't proceed in the way we had agreed to proceed in terms of completing Bill 74 today.
Mr Malkowski: We have had an opportunity to discuss the issue; however, there is still ongoing debate on that issue. As far as interministerial issues are concerned, there are certain issues that will impact all three bills, so I feel we should continue with 74 and deal with those segments as best we can.
Mrs Sullivan: Is it the government's intention to come back with information to us that it had indicated yesterday it wanted to discuss so that we can in fact complete Bill 74 today fully? The only reason that we stood down those sections was that we had hoped that the government was going to do what it said it intended to do, which was to discuss how it would approach the amendments.
Mr Malkowski: Can I ask for just a five-minute or 10-minute recess so that the government members can discuss the issue and respond?
The Chair: All those in favour of a 10-minute recess? All those opposed?
Mr Morrow: What is the recess for, Mr Chair?
The Chair: Mr Malkowski has asked for a 10-minute recess so that they can get back with a response to Mrs Sullivan's inquiries about whether or not there will be anything forthcoming today on an interministerial statement.
Mr Winninger: I would support that.
The Chair: All in favour of a 10-minute recess? Opposed? Carried. We will have a recess until five to four.
The committee recessed at 1546.
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The Chair: I call this meeting back to order. Are there any comments from that recess? Mr Malkowski.
Mr Malkowski: The government members would like to continue with those outstanding motions and then we will go back to those motions that were stood down and debate those.
Mr Sterling: Mr Chairman, I'm getting awfully tired. When are we going to break for dinner?
The Chair: The Chair is at the indulgence of the committee.
Mr Sterling: I say that in jest.
The Chair: I realize that, Mr Sterling.
We will now proceed with the government motion on section 8.1. Comments? Seeing no comments --
Mrs Sullivan: Mr Chairman, could we have an explanation from the government for the reason for this motion?
The Chair: Go ahead, counsel.
Ms Perlis: The motion actually reflects an oversight in the original drafting of the bill. The clauses proposed resemble delegation clauses found in most other statutes: the Pay Equity Act, the Ombudsman Act, the Human Rights Code. Without it, any decision or function required to be performed by the commission legally would be required to be performed by all of the commissioners in the absence of a legal delegation clause.
Mr Jim Wilson: Could you go by the latter part again of that explanation?
Ms Perlis: Any function in the bill required to be performed by the commission in the absence of a clause such as the one proposed would mean that it would have to be done by each and every one of them. There would be no statutory provision for delegation of a function, such as the giving of consent to an advocate to access records for systemic purposes, which the commission must consent to.
That consent would have to be given by each and every commissioner, in the absence of a clause such as this one, any place in the act where it says the commission shall consent or make a decision. It also allows administrative delegation from the commission to officers or employees of the commission.
Mr Sterling: Just a minute now.
Ms Perlis: There are two, part A and part B.
Mr Sterling: Yes, there are two.
Mr Jim Wilson: Part A is fine, part B is problematic.
Mr Sterling: You're basically saying the chair of the commission can delegate the right to gain access to records to some bureaucrat. Am I not correct in that interpretation by reading your amendment?
Ms Perlis: Essentially. It would allow the chair to delegate to officers. That's correct.
Mr Sterling: The explanation of the need for it is that the commission can delegate to the chairman of the commission. I'm in agreement with that, but what we're saying is he can delegate any of his duties and his powers to anybody in the commission, including the receptionist at the door. Now that's not going to happen, but notwithstanding that, there are some pretty intrusive powers that are given under the auspices of this commission.
Why do they need such a wide delegation clause? Even under the freedom of information act, I believe there are certain functions that only the commissioner or the assistant commissioner of freedom of information can do himself or herself. I can remember having the battle during that legislative hearing that we would allow some delegation, but only to very few people when you're dealing with sensitive information about personal individuals. I find this far, far too wide and very, very dangerous.
Ms Perlis: I wonder if I could just point out, for example, that it resembles the delegation clause in the Ombudsman Act which allows the Ombudsman, in writing, to delegate to any person holding office under him.
It also would be impossible to function administratively without this kind of delegation clause. I suppose it could be possible to rework the clause, although we feel the chair and the commission will exercise the delegation authority appropriately.
Mr Sterling: I guess the problem I have, particularly in the information issues, is I want the commissioner and the people in the commission to understand that when they give out that power to get information, it's something special. It's not a normal, run-of-the-mill kind of decision that's being made. Therefore I have a great deal of difficulty with the blanket delegation that you're giving to the commission to hand this off to them.
I don't know whether you can split off the particular delegations dealing with the sections relating to information. I think I have delineated those. I think 17(1), 18(1) and 24(2) are the relevant subsections, and I would agree to a restrictive clause of delegating this to the chairman of the commission or any other two commissioners or something like that.
Ms Perlis: Perhaps from a policy standpoint, I can clarify that the intent was discussed with legislative counsel who may want to address the actual drafting. The intent basically is the issue of policy procedures, that sort of thing, being delegated from the commission as a total to the commissioner or a subcommittee of the commission and administrative responsibilities being able to be delegated to staff. It was the advice of legislative counsel that the wording as it is, where there can be restrictions as it considers appropriate, was the appropriate way to do the wording here.
I think the general concern is not one that would seek wide-open delegation but one that would have appropriate delegation clauses that are usual in that.
Mr Jim Wilson: Is it possible then, with that explanation, to ask for some rewording to be brought back to the committee?
The Chair: We can stand it down. Is the committee agreed? Agreed.
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Section 9:
The Chair: Next is government motion on 9(1). It seems to make more sense to do the Liberal motion first on 9(1).
Mrs Sullivan: Mr Chairman, I withdraw that motion.
The Chair: Withdraw? All right. There is a PC motion on 9(1).
Mr Sterling: This clause restricts the liability of people who are advocates or a member of the commission. I'm concerned about the scope of the release of liability or the lack of liability on the part of people who are given what I consider significant powers.
I have moved under the amendment yesterday that an advocate or any person who works for the commission or the commission should not be exonerated from liability for neglect or default in the execution in good faith of the person's duty. I have a real problem here in that advocates, in taking on the responsibility of looking out for a vulnerable person, should not feel the weight of responsibility associated with taking on that duty to represent them.
I guess I relate it somewhat to the role I assumed when I practised law, when I took on the duty of representing a client and felt the responsibility that I could not avoid liability just because I said I forgot to do something. Therefore, I think the whitewashing of the whole matter in terms of allowing them off the hook for neglect or default in doing what they are supposed to do is totally inappropriate for people who are put in this kind of position.
They're going to be operating on their own to a very large degree; they're going to be out there in the community; the chairman of the commission is not going to be able to know in every case, or keep his or her fingers on each and every advocate. I think they have to understand that when they walk out there they're personally responsible for how they conduct themselves and that if they forget to do something on behalf of somebody they're on the hook.
Even though they are hired by somebody else, I see that this position of advocate should not have the same kind of cloak of protection a civil servant might expect to get in terms of being a member of the civil service of Ontario, for instance, for what he or she might do under her job. I don't think we can afford to give that kind of protection to an advocate who is out there in the field, because of the nature of the job.
Mr Malkowski: We can't support the motion because this section, as currently drafted, is in fact standard wording insulating individuals from any personal liability.
Mr Wessenger: I would like to add that it seems clear that the question of liability on whether a person acts or fails to act should be the same, that is, whether they do it in good faith. That's the intention of the provision and that's what the standard provision provides, that you judge the failure to act and the act on the same basis. What Mr Sterling's motion would do would be to create a higher liability for failure to act than for doing an act.
The Chair: Further discussion?
Mr Sterling: I'm sorry to hear the parliamentary assistant not willing to go the extra step to protect vulnerable people in this province. I do believe that advocates under this system have to have the same kind of responsibility and liability as a lawyer would if he or she acted on behalf of a vulnerable person in the community. I think they should feel that responsibility when they make decisions about how they're going to conduct themselves with regard to dealing with vulnerable people. We're going to require a high degree of professional capability with regard to what these people are doing. I'm sorry to see that all these advocates are going to be able to operate without any kind of personal responsibility. As the act is now written, there's no discipline procedure even to scold an advocate for acting in an unprofessional manner, even if it were intentional. It seems to me that this degree of protection for these particular individuals is far, far too great for the job they're doing. I'm sorry that you're not requiring that high standard from your advocates. As a consequence, when you don't put the personal responsibility on their shoulders, you won't get the high performance from your advocates. It just will not follow.
Mr Malkowski: Having listened to your concerns, Mr Sterling, I would like to ask our counsel to make some comments on that.
Ms Perlis: I'd like to point out a few things. Firstly, the protection from personal liability is only in relation to acts done in good faith by the advocate.
Secondly, I'd like to point out that subsection 2 of that section makes the commission and the community agency vicariously liable for the acts of the advocate, and the advocate, as an employee of the commission or community agency, can have his or her authorization -- and employment contract -- terminated as a consequence of any wrongdoing. Thirdly, I'd just like to point out that the protection given to advocates under this act is the same as that extended to child protection workers under the Child and Family Services Act, who are also protected for acts done in good faith; their powers of intervention, entry, access and so on with respect to vulnerable children are coextensive to those of the advocates under this act.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the motion by the PCs on section 9(1)? Opposed?
Motion negatived.
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The Chair: We'll now go to the government motion on subsection 9(2). Comments?
Mr Jim Wilson: This is in the reprint?
The Chair: My apologies, we should go back to the motion on subsection 9(1) in the government reprint. Any comments? Seeing none --
Mrs Sullivan: Is that the one that's reprinted?
The Chair: Reprinted in the bill, the underlined part. No comments? All those in favour of the government motion? Opposed?
Motion agreed to.
The Chair: Now we go in the reprint to government motion on subsection 9(2). Comments? Seeing no comments, all those in favour? Opposed?
Motion agreed to.
The Chair: Next we go to the Liberal motion on clause 10(1)(a).
Mr Jim Wilson: Just following the road map, there is a deletion of subsection 8(3). Do we vote on that, or do we not vote on deletions?
The Chair: That's a deletion. When we vote on the section, that will be incorporated.
Section 10:
The Chair: Okay, the Liberal motion on clause 10(1)(a).
Mrs Sullivan: This motion relates to the advisory committee and changes the requirement for the composition of that committee from a majority of members being from groups of family members of vulnerable persons, non-professional persons who provide care and health and social service practitioners who provide services to being a committee that's composed solely of persons from those groups.
Mr Malkowski: We won't be able to support this motion, because we feel it's important that the advisory committee does not become isolated from the perspective of vulnerable people. In fact, it's critical that their viewpoint and perspective is shared within the committee and that it's not a separate entity or a separate part of the committee.
Mrs Sullivan: I now recall why I put this amendment forward. It is to point out the irony that the government will not allow family members and friends and health care providers, people who are providing care and services to vulnerable people, to be a part of the commission, and yet uses the argument that other people must be part of the advisory committee, people who are themselves disabled and so on, because otherwise there could not be a communication of the needs and requirements. It is just delicious irony, and that was the real purpose of this amendment.
Mr Jim Wilson: Just for the record, I will not be supporting this amendment. I agree with some of the comment made by Mr Malkowski, that this would limit the function of the committee and the ability of the commission to establish other committees. It doesn't make any sense to me.
Mr Sterling: To be consistent with my arguments this morning in terms of saying that the commission should be able to function, make real and good decisions, in support of my motion with regard to that I cannot agree with what is put forward here, because I believe that both the advisory committee and the commission would be well served to have all of the players on them but the majority should be reversed with regard to the two bodies. I find it odd that Mr Malkowski is using the selfsame arguments that I used with regard to the commission when dealing with the committee.
Mr Jim Wilson: Mr Chairman, I just want to point out that I erred in my reasoning and that I read that the motion would also strike subsection 10(b). None the less, I'm still opposed to the Liberal motion.
Mrs Sullivan: Mr Chairman, just to conclude these remarks: In fact, in reality I don't support this motion myself. I wanted, however, to put it on the table so that there will be an understanding of what the government is doing with respect to the composition of the commission and the composition of the advisory committee.
On the commission, the government is being exclusive. On the advisory committee, the government is being inclusive. The government is using the precise arguments for maintaining the drafted composition of the advisory committee as we are using in respect to the composition of the commission itself. We do not see or understand the logic of that thinking, the practicality of that thinking and do not see anything other than an inconsistency and a stubborn insistence on an ideological approach that, in fact, is going to hinder the activities of the commission.
That's why this amendment is being put forward: to simply underline the ridiculousness of the government's position on the setup of the commission.
The Chair: Further discussion? Seeing no further discussion, all this in favour of the Liberal motion on clause 10(1)(a)? All those opposed?
Motion negatived.
Mr Sterling: On a point of order, Mr Chairman: It's quite proper parliamentary procedure to put forward a motion which you do not necessarily support.
The Chair: Yes, it is. Thank you very much.
Now, on the Liberal motion on paragraph 10(2)2.
Mrs Sullivan: Mr Chairman, I have a replacement motion for this motion to reflect the identical change which was made to an earlier section.
The Chair: Mrs Sullivan moves that paragraphs 2 and 3 of subsection 10(2) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"2. Persons who provide care and services to vulnerable persons."
Could we stand this down until legislative counsel could write it up?
Mrs Sullivan: Sure.
The Chair: Thank you. You are withdrawing your other motion on paragraph 10(2)2?
Interjection.
The Chair: Thank you. Next we go to a Liberal motion on subsections 10(3), (4) and (5).
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Mrs Sullivan: Could we have a Progressive Conservative motion taken first, Mr Chairman?
The Chair: Okay, the PC replacement motion on subsections 10(3) to (7). Mr Sterling, would you like to withdraw your former one?
Mr Sterling: I withdraw the previous motion on that on section 10.
The Chair: Mr Sterling moves that section 10 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsections:
"Functions
"(3) The committee established under clause (1)(a) has the following functions:
"1. To comment on the impact of the advocacy services provided by the commission on the families of vulnerable persons.
"2. To comment on the impact of advocacy services provided by the commission on the providers of health and social services.
"3. To consult and advise on the policies and procedures of the commission.
"(4) The chair of the committee established under clause (1)(a) shall be appointed from among the members of the committee.
"(5) The chair and the other members of the committee established under clause (1)(a) shall hold office for three-year terms and may be reappointed for one further three-year term.
"(6) The committee established under clause (1)(a) shall meet at least four times a year.
"(7) The chair and the other members of the committee established under clause (1)(a) shall be paid the remuneration fixed by the Lieutenant Governor in Council.
"(8) The committee established under clause (1)(a) shall make an annual report to the minister on its activities."
Mr Sterling: At the request of the government, I have reworked the motion which I put forward yesterday. In my view, it carries a substantial part of what I wanted yesterday, which includes some kind of formal reporting mechanism and ensures that the committee is at least somewhat active. I would hope that it would be much more active than meeting quarterly, but it puts a bare minimum there and, I guess, gives them some scope of what I would see as part of their function as a committee advising the commission.
Mr Malkowski: The motion certainly seems to be very reasonable and valid, and the government has no problem in supporting that motion.
Mr Sterling: As all my amendments are.
Mr Jim Wilson: We don't have any we don't support.
Mrs Sullivan: We support this motion and will be withdrawing the motion that we have put forward with respect to the description of the function of the committee. We feel that this is a real addition to the bill. It certainly follows upon the recommendations which have been put forward to us by many groups and organizations. We feel that the advisory committee, if it has any validity at all, must indeed have a mandate, must indeed have a reporting function, an accountability, and regular meetings which ensure that the work of the committee proceed and is seen to move ahead.
The one reservation I have with respect to the recommendation is it was our motion that the commission would include any reports made to it from the advisory committee as part of its annual report to the minister. What we have here is that the advisory committee itself will make that annual report to the minister. Therefore it will be separate from the activities of the committee and the juxtaposition of the commission's activities and those of the committee which are making recommendations or commenting on advocacy services and providing consultation and advice will be separate and distinct and perhaps may flow at a different time. However, we feel that this is a very useful amendment and we'll be supporting it.
The Chair: Further comments? Seeing no further comments, all those in favour of the replacement PC motion on subsections 10(3) to (7)? Opposed?
Motion agreed to.
The Chair: All committee members have received the new Liberal motion on subsection 10(2), paragraphs 2 and 3, which will be re-read into the record.
Mrs Sullivan moves that paragraphs 2 and 3 of subsection 10(2) of the bill, as reprinted, be struck out and the following substituted:
"2. Persons who provide care and services to vulnerable persons."
Mr Malkowski: We will be prepared to support that motion.
Mr Jim Wilson: For the record, we'll be supporting this motion, which clarifies the wording and intent of the section.
The Chair: Seeing no further comments, all those in favour of the replacement Liberal motion on subsection 10(2), paragraphs 2 and 3? Opposed?
Motion agreed to.
The Chair: At the end we'll go back to the government on section 10.
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Section 11:
The Chair: Now we'll go to the PC motion on subsection 11(3).
Mr Jim Wilson: We just need about 30 seconds on that. We want to change a line.
Mr Sterling: I'm going to withdraw my previous subsection 11(3) and substitute therefor:
"The minister shall table the advisory committee's annual report before the Legislative Assembly if it is in session or, if not, at the next session."
In other words, it parallels subsection 11(2) with regard to the commission's annual report.
Mr Jim Wilson: The intent really is self-explanatory. It's to ensure the Legislature receives both reports.
Mr Malkowski: Could I ask for repetition of the motion, please? Could you just repeat it for clarification?
Mr Sterling: "The minister shall table the advisory committee's annual report before the Legislative Assembly if it is in session or, if not, at the next session."
Mrs Sullivan: We will be supporting this amendment. It follows fully with respect to the last amendment put forward by the Progressive Conservatives, which we supported. We also feel that the Legislature would be well advised to have that document to understand the workings not only of the commission, but of the advisory committee to the commission.
Mr Malkowski: We have some concerns with the wording of the motion. I'd like to ask our policy adviser to comment on that.
Ms Valentine: I believe the government intent is to accept the motion, but the wording would probably have to be reworded, and legislative counsel is looking at the wording. It likely would have to say something to the effect of the committee established under clause 10(1)(a). Laura Hopkins will be able to offer some wording in a few minutes.
The Chair: Stand this down until legislative counsel can reword it? Agreed.
Section 13:
The Chair: In the government reprint, government motion 10, clause 13(1)(b).
Mr Sterling: I'm just throwing this out and maybe the parliamentary assistant might want to think about this. The reason we're having difficulty with that section is because the advisory commission has no name. Maybe it would be wise, if they're going to produce an annual report, as we have already agreed, that you might want to enshrine the advisory committee to the Advocacy Commission or something very descriptive but which would have some kind of tag on it. I just throw that out, okay?
Mr Malkowski: Thank you for that comment for consideration.
The Chair: On the government motion on clause 13(1)(b), discussion or comments? No comments? All those in favour of the government motion on clause 13(1)(b) in the reprint? Opposed?
Motion agreed to.
The Chair: Government motion on subsection 13(4.1) in the reprint. Comments? Seeing no comments, all those in favour of the government motion on subsection 13(4.1) in the reprint ? Opposed?
Motion agreed to.
Section 14:
The Chair: Government motion on subsection 14(1.1). Comments? Seeing no comments, all those in favour of the government motion on subsection 14(1.1)? Opposed?
Motion agreed to.
Section 15:
The Chair: Government motion on subsection 15(1), paragraph 2. Any comments?
Interjection.
The Chair: It was a motion moved in committee, not in the reprint.
Mr Sterling: We have no problem.
Mr Jim Wilson: No problem with that, Mr Chairman.
The Chair: Thank you. Seeing no further comments, all those in favour of the government motion on subsection 15(1), paragraph 2? Opposed?
Motion agreed to.
The Chair: Government motion on subsection 15(1), paragraph 6, moved in committee. Comments?
Mr Sterling: We have no problem.
The Chair: All those in favour of the government motion on subsection 15(1), paragraph 6? Opposed?
Motion agreed to.
The Chair: Liberal motion on subsection 15(1), paragraph 6.
Mrs Sullivan: This motion is put forward in accordance with the expert advice we received before the committee indicating that the section, "Organizations representing persons with a neurological disability, illness or infirmity," should include schizophrenia and therefore the motion is placed before you.
Mr Malkowski: The government cannot support the motion for the following reasons: The issues requiring advocacy services for vulnerable people diagnosed as schizophrenic are, for the most part, identical to those of other people with psychiatric or emotional disabilities, and organizations representing schizophrenics fall more appropriately into paragraph 4 than into paragraph 6. Additionally, we don't wish to set a precedent for prolonged debate as to the nature of other psychiatric or emotional disorders.
Mr Sterling: I feel that because of the evidence given in front of this committee that over 50% of our beds in our psychiatric institutions are occupied by people who are schizophrenic patients, it certainly deserves in my view the unenviable designation as the predominant psychiatric mental illness that we have in Ontario.
If that is the case, then I think they really do bear being included as a specific part or item of the organizations that are considered under this particular part of it. We heard that 8% of our total health care budget goes to taking care of this one illness. Probably there's no other illness -- well, there might be in terms of cancer or heart disease. It's a huge part of our health care budget. It's a huge problem and I think it deserves being distinguished or brought to the fore in either this section or in paragraph 4. I'm sure Mrs Sullivan doesn't really care which section it's in as long as it's recognized.
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Mr Malkowski: Just to respond to that concern, you've said the beds in psychiatric hospitals specifically, but again those are not neurologically diagnosed patients; those aren't beds for neurological patients. Again, it's psychiatric hospitals.
Mr Jim Wilson: I don't understand that.
Mrs Sullivan: I think the issue here relates to the way people define themselves and the expertise associated with the illness or disability is itself defined by those who have that illness or disability.
I note that the government has accepted the recommendation of the Learning Disabilities Association of Ontario, which came before us indicating that it would prefer to be categorized under paragraph 6 as a neurological illness, rather than under paragraph 2 with a physical disability that's not readily apparent. The government's acceded to that request.
The Ontario Friends of Schizophrenics have come before this committee and they've indicated to us that all of the expertise, all of the current thinking, all of the approach to the disability or illness of schizophrenia is to recognize it as a neurological disability. They have asked therefore, very specifically, to be included and recognized quite specifically under paragraph 6. I am, on their behalf, because I am convinced by their arguments, putting that forward.
You've been talking about people defining themselves. Well surely, we can accept the advice of people who are involved and accept their definition and include them quite specifically in that section.
Mr Malkowski: In response to that, when an individual is schizophrenic, he goes to a psychiatrist; he does not see a neurologist. Also, members of the Ontario Psychiatric Survivors' Alliance themselves have said they are comfortable with category 4.
The Chair: Thank you. Further comments?
Mrs Sullivan: I didn't understand the last comment from the parliamentary assistant.
Mr Malkowski: Persons with schizophrenia themselves are members of an organization called OPSA, the Ontario Psychiatric Survivors' Alliance, and they support the designation under category 4.
Mrs Sullivan: We've had no evidence of that before the committee. The evidence we've had before the committee was a specific request for schizophrenia to be included specifically under paragraph 6.
Ms Carter: Maybe this needs to be considered in the light of the government motion that's just coming up, which alters the basis on which this amendment is put; so that the change will be made, but it will not have the effect that was considered.
The Chair: Are you referring to 15(2)?
Ms Carter: Yes.
The Chair: Further comments? Seeing no further comments, all those in favour of the Liberal motion on paragraph 15(1)6? Opposed?
Motion negatived.
Section 11:
The Chair: Now we can go back to the PC replacement motion.
Mr Sterling: Why don't I read it? It's a short motion and I might as well read it again.
I move that section 11 of the bill be amended by adding thereto the following subsection:
"(3) The minister shall table the annual report of the committee established under clause 10(1)(a) before the Legislative Assembly, if it is in session or, if not, at the next session."
I am advised by legislative counsel that it's not necessary to name the committee in the legislation, that that can be done subsequently by themselves. So my previous point was not irrelevant, but not important.
Mr Winninger: Well, at least you referred to a committee established under a particular section, to differentiate it from the appointments advisory committee, for example.
Mr Malkowski: We certainly support the motion.
The Chair: Further comment? Seeing none, all those in favour of the PC replacement motion on section 11? Opposed?
Motion agreed to.
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The Chair: As it's 5 o'clock and we still have a long way to go, could the committee give the Chair some indication of how we are going to proceed?
Mr Malkowski: We would like to continue and complete the proposed amendments. If it looks like we're going past 6, I would recommend we have a dinner break at 6 and resume at 7.
Mr Sterling: I don't want a long discussion about this, but I would prefer that at 6, if it appears we're getting near the end of the road, I'd just as soon continue on. Why don't we judge it at 6 o'clock? We'll not hold the clerk responsible for feeding us until 6 o'clock when we make that decision.
The Chair: Any further comments? If not, we will proceed.
Section 15:
The Chair: The government motion moved in committee on subsection 15(2). Comments?
Mrs Sullivan: I don't think we should proceed to a vote on this without having some explanation from the government of why this entire section is being put forward. We are reaching the point of a circus scenario in terms of quotas for various bits and pieces on the appointments committee and on the advisory committee and on the commission itself. The government is moving another motion which creates another series of quotas about who can do what and when and how and who should be there and so on. The next thing we will have is a quota for a quorum of the commission. I just think this is ludicrous. I would like to hear what passionate reason requires this additional section.
Mr Malkowski: I'd like to refer this to our legal counsel.
Ms Perlis: The motion accomplishes two purposes. First, it removes the exception previously accorded to the organizations in category 6 under neurological disability, to reflect the new information obtained through the committee hearings that there are in fact groups of persons with neurological disorders who speak on their own behalf and who could adequately represent the organizations from that category in the nominations process.
The second effect of the amendment is to give full effect to the intent that the organizations who are eligible to participate in the nominations process have a membership which is comprised of a majority of persons with disabilities. As the section is currently worded in the reprinted bill, in subsection 15(2), it is possible that the organization represents persons who are family members or care givers or professionals who have an interest in persons with disabilities from the various categories and within the strict interpretation and the wording of 15(2) would therefore qualify.
But it is the government's intent that the only organizations that qualify to participate in the process are those whose membership is comprised of a majority of persons either from the groups or with the disabilities described in the various categories, with the exception of categories 7 and 8, which are given special treatment in the amendment because of the way the organizations are described in the categories.
Mrs Sullivan: I suppose that with respect to paragraph (a), we're getting back to the argument put by Mr Baker before the committee, which many of us disagree with. We felt that the first approach of subsection (2) was the appropriate one. I will ask you to explain to me how an organization for autistic people will participate in this process. We know there are enormous strides being made in terms of communications efforts in autism, but this is complicating the whole process to the point of insanity.
Mr Malkowski: I would like to refer this to legal counsel.
Ms Perlis: Actually, it's co-counsel at the moment who's going to speak to that.
Ms Carla McKague: I think there are a couple of things that should be indicated about the wording of the section as revised to do with the neurological category.
First, as Mr Malkowski has already indicated, the government has certainly learned since the original draft of the existence of groups it was unaware of with various sorts of neurological disabilities.
Second, with a number of these disabilities, there is of course a wide range of deficit, if one likes, disability, so that for people with Alzheimer's disease, you have people in the very early stages and still very, very high functioning, and people who are very seriously deteriorated. Particularly with the addition or the moving of learning disability into category 6, we feel there's a very fertile field for very able representatives. Disabilities such as autism are yet a bit behind, both in therapy and in organizing among themselves, but they're certainly well on the way, and the legislation of course does not require that a person with autism sit on the commission. It requires that if there are organizations of people who are autistic, they have the right to participate in the choosing of the commission. I would also reiterate that all of those organizations in category 6 are among themselves going to have to come up with two names, and that any groups which may be at a stage of development at which they're not yet able to participate as fully as one would like in that process are not going to have undue weight in the selection of the final two candidates.
Mr Sterling: I'm amazed at how careful the government is being with regard to the selection of the appointments advisory committee, which I presume is going to have a function that is going to be somewhat limited and for a very short duration. I guess there comes a time when you're drawing legislation that you have to think about people who might want to read this stuff and try to understand what you're driving at. If the minister were not satisfied that a nomination came forward that was representing a group or a legitimate group or a group that was not intended to be represented on the advisory committee, she in this case only has to take eight of these people. Presumably, she's going to have 24 different nominations. I mean, you don't seem to be that concerned about some of the qualifications about what advocates must be, but we're concerned about who is going to be on a committee to place people on the commission and their job. I guess it will take one meeting every two years or one meeting every year, and we're writing legislation which is extremely complicated. The care you're taking for the job seems to me extreme at the very least. I believe that the minister has enough discretion to ensure that every nomination that's coming forward is from a legitimate group representing a legitimate interest that she wants on that commission.
I must say there is some sense to the section, but it's just how complicated you make it for what I consider is an advisory committee which isn't going to really decide anything except who's going to be on another committee. I don't know how long you go on.
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The Chair: Further discussion? Seeing no further discussion --
Mrs Sullivan: It's just so nonsensical that no further discussion is necessary. We will clearly be voting against this. This is just ludicrous.
The Chair: Seeing no further discussion on the motion moved in committee by the government on subsection 15(2), all those in favour? Opposed?
Motion agreed to.
The Chair: It seems we missed one amendment in the reprint. Government motion in the reprint, paragraph 15(1)7, the underlined section. Any discussion?
Mrs Sullivan: Yes, could the parliamentary assistant speak to what is intended to be added in this section?
Mr Malkowski: I'd like to ask legal counsel to expand on that.
Ms McKague: This amendment is really again a clarifying amendment. As originally drafted in error, one must admit, they said organizations representing persons with multiple disabilities, of which obviously the clearest reading is an organization such as, for example, a deaf-blind association for people who each have more than one disability.
That was not the intent. The intent was to involve organizations such as PUSH, for instance -- Persons United for Self-Help in Ontario -- which represent people all of whom are disabled but who have differing kinds of disabilities, so some members are blind, some members are in wheelchairs and so on. It's simply to clarify that cross-disability organizations was the category that was meant to be included as category 7.
The Chair: Further comments? Seeing none, all those in favour of the government reprint on paragraph 15(1)7? Opposed?
Motion agreed to.
The Chair: On Liberal motion 15.0.1 to 15.0.3.
Mrs Sullivan: I have a replacement motion which has been distributed.
The Chair: You withdraw the other one?
Mrs Sullivan: Yes, I withdraw the original motion. I have to read this into the record, correct?
The Chair: Mrs Sullivan moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following sections:
"Advocacy review board
"15.0.1 (1) A board to be known as the advocacy review board is hereby established.
"Functions of the board
"(2) The board has the following functions:
"1. To consider complaints relating to the conduct of advocates who provide advocacy services on behalf of the commission.
"2. To hear appeals from decisions of or findings of advocates.
"3. To consider complaints relating to the commission's performance of its functions.
"4. To hear appeals from decisions or findings of the commission.
"5. To issue directives concerning the circumstances in which advocates are required to provide the advocacy services required under the act.
"Powers of the board
"(3) The board has the powers necessary to perform its functions and, in particular, may,
"(a) investigate and hold hearings into complaints;
"(b) impose disciplinary measures against an advocate that the board determines has acted improperly,
"(c) substitute its decision or finding in a matter complained of for that of the advocate or commission and direct a course of action to be followed.
"Procedure
"(4) The chair of the board may make rules governing the procedure to be used in hearings before the board.
"Composition of panels
"(5) The chair shall determine the composition of each panel of the board that holds a hearing relating to a complaint or an appeal. A panel may consist of either one or three members, as the chair determines.
"Composition of the board
"15.0.2(1) The board shall consist of such members as may be appointed by the Lieutenant Governor in Council.
"Ineligibility
"(2) A person is not eligible to be appointed as a member of the board if he or she is employed,
"(a) by the commission;
"(b) by a community agency that provides advocacy services to vulnerable persons;
"(c) by an organization that provides health care, housing, or vocational or other services to vulnerable persons; or
"(d) at a facility.
"Chair
"(3) The Lieutenant Governor in Council shall designate one member as chair and one or more others as vice-chairs.
"Service
"(4) The members shall serve on a part-time basis.
"Term and reappointment
"(5) The members shall hold office for three-year terms and may be reappointed.
"Vacancies
"(6) If a member's position becomes vacant, the Lieutenant Governor in Council may appoint a replacement to serve for the remainder of the member's term.
"Same, chair
"(7) If the chair is unable to act for any reason, a vice-chair may act in his or her place.
"Remuneration and expenses
"(8) The members shall be paid the remuneration fixed by the Lieutenant Governor in Council and the reasonable expenses incurred in the course of their duties under the act.
"Staff
"(9) Such employees as are necessary for the proper conduct of the board's work may be appointed under the Public Service Act.
"Complaints to the board
"15.0.3(1) Any person may make a complaint to the board in writing,
"(a) about the conduct of advocates who provide advocacy services on behalf of the commission; or
"(b) relating to the commission's performance of its functions.
"Appeals
"(2) Any interested person may appeal a decision or finding of an advocate or the commission by giving notice in writing to the board.
"Consideration by the board
"(3) Upon receiving a complaint or notice of an appeal, a panel of the board shall hold a hearing into the matter and make a decision.
"Legal representation
"(4) A party to a hearing and any witness participating in the hearing is entitled to be represented by a lawyer at the hearing.
"Compliance by commission
"(6) The commission shall comply with any directions issued to it by the board relating to a complaint.
"Publication of decisions
"(7) The board shall provide a copy of its decision following a hearing to persons who request a copy."
Mrs Sullivan: Mr Chairman, the intent of this motion is quite clear. Throughout the hearings and in the intersession and any discussions relating to the Advocacy Commission and the services of advocates which would be provided thereunder, we have heard great concern about the powers of an advocate to intervene in people's lives, the power to determine their vulnerability, the power to access their records, the power to enter private premises, the power to participate in an interventionist way.
For the most part, I think most of us believe that those powers will be used responsibly. There may be instances, however, where indeed they're not used responsibly, where indeed an advocate is not operating in a manner in which the vulnerable person, or a person representing the vulnerable person, is satisfied that ethical standards are being maintained, that the advocate is qualified to make judgements in certain areas. As a consequence, the independence of a complaints body and a review body was felt by many people to be extremely important.
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You will note that our recommendations are that the body be a part-time body because in fact we believe that the numbers of complaints and the numbers of reviews requested will in fact be limited. But we do feel very strongly that there must be a body that is able to act and is able to act with independence from the commission in terms of reviewing the issues and determining whether or not an advocate has appropriately responded to a situation, has contravened either the law, for example, by making decisions on behalf of a vulnerable person, or has exceeded powers or used them in an unhappy or inappropriate manner.
We felt that the board must be independent of the commission. I believe that the Progressive Conservative recommendation in this area suggests that there be a separate complaints review committee under the commission. The commission itself has significant power and in engaging in some activities perhaps relating to systemic advocacy may engender complaints and concerns that should also be reviewed by a review board that is independent in itself of the commission.
We know that there has been, in virtually every day of our public hearings, at least one presenter and frequently more who are very concerned about the lack of independent review procedures with respect to services provided by advocates and by the commission. We've modelled the board in a responsible way, in a way that includes simplicity and where the mandate is very clear. I am sincerely hoping that the government will support this amendment. We really believe it's an important one.
Mr Jim Wilson: While agreeing with the thrust and the principle behind this motion as put forward by the Liberals, we don't really support it in terms of setting up another independent review body. Members will note with the PC motion pertaining to this new section that our model is similar and parallels that which we saw in the Regulated Health Professions Act, at least in principle, where the commission itself should have a review process, a complaints process, an appeals process and body where the public can bring complaints or concerns and where decisions of the commission can be reviewed on sober second thought as it were. We don't find it necessary to set up another independent body to do that. We trust many of our professional colleges to do this work internally and we'd like to see a similar structure for the advocacy commission.
Mr Malkowski: We will not be able to support this motion. We feel this review process is overly complex and inappropriate, being based on a professional discipline model.
Mr Jim Wilson: Having heard that, what is the government's intention in this area? If you don't support the Liberal review board model, are you intending to support the PC motion that will follow? I think it's important that we hash this out now, given that I think Mr Malkowski indicated a willingness there to have some sort of review process in place, an appeals process.
Mr Malkowski: This process would be too complicated.
Mr Jim Wilson: Then what do you suggest? We heard, as Mrs Sullivan very correctly stated, witness after witness after witness calling upon all of us to think good and hard about what type of accountability is in here for advocates, and where would the public go, and how would their complaints be dealt with and who would review the decisions of the commission? These are very serious questions that can't be sloughed off. We -- and the Liberal Party agrees, of course -- are not willing to let these important matters be dealt with simply in regulations.
Mr Malkowski: I appreciate the concerns you have raised. One of the things we are certainly willing to consider is using a model from the Child and Family Services Act; that's a model we could see being useful. Maybe I could refer to our legal counsel to expand on that.
Ms McKague: Perhaps preliminary to speaking precisely to the CFSA model, we could reiterate the government's concern that the motions that have been brought forward seem to indicate the idea that an advocate is going to be carrying out an occupation which is very similar in its structure to professions. This is not the case. Doctors have their licences removed and cannot practice medicine. An advocate who has his or her authorization removed will still be able to be an advocate. The professional discipline model just isn't effective when using disciplinary processes does not affect the person's livelihood.
It seems more appropriate to work within the standard employer-employee kind of model, with suitable safeguards. We're looking very seriously at expanding the current provisions in the bill which say that the commission will develop a complaints procedure, to giving the commission some guidelines. This is not yet an undertaking. I'm putting this forward as something that we're considering, and the proposed section on which this would be modelled is section 64 of the Child and Family Services Act, which provides that a children's aid society:
"Shall establish a written review procedure, which shall be approved by a director, for hearing and dealing with complaints by any person regarding services sought or received from the society, and shall make the review procedure available to any person on request.
"(2) A review procedure established under subsection (1) shall include an opportunity for the person making the complaint to be heard by the society's board of directors.
"(3) A person who makes a complaint and is not satisfied with the response of the society's board of directors may have the matter reviewed by a director."
This provides an opportunity for complaints and an opportunity for a hearing before the board of directors, which presumably, in the case of the commission, would be a hearing before the commission, and a review -- just a moment. I want to check with co-counsel here. My friend advises me that in fact there's been some modification to this and that the original complaint would be heard before a committee composed of members of the commission and of the advisory committee, and that there would then be a review available to the chief commissioner. This is a model that we could flesh out a little, should we decide to proceed with it, but one that is much simpler, much easier, does not set up complicated new structures and doesn't fall into the trap of thinking that professional discipline is necessarily the best way to deal with an advocate who is not fulfilling his or her duties appropriately.
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Mr Jim Wilson: With due respect, I disagree that a professional discipline model is not appropriate. I found most of that mind-boggling and in fact unbelievable, in terms of the premise being that advocates aren't some sort of profession. Does the government truly believe that with this legislation, it's not really establishing the new profession of advocates? I think they are. I think many witnesses who appeared before this committee believe that.
Certainly I can see no other evolution down the road other than that we'll be teaching in our community colleges and universities professional advocacy at some point. It will almost be necessary with this legislation, especially the vagueness of this legislation, if advocates are to truly do their job and carry out responsibilities and to have the public confidence necessary to carry out the responsibilities, because there are tremendous responsibilities and powers given in this legislation. I think we can come to no conclusion except that the natural evolution of this is a professional body of advocates. To slough this off at this point and for the government not to bring forward a specific amendment to the legislation dealing with an appeals procedure and a discipline model of some sort is, frankly, mind-boggling. I'm going to stop there, because I know Mrs Sullivan wants to carry along the same line of comment, but I really am shocked that we're in clause-by-clause, and the government knows of our concerns, knows of the many witnesses who expressed similar concerns, and yet we have nothing before us to deal with this. We're given platitudes and nothing concrete from counsel, no comment at all from the parliamentary assistant, no assurances from the government. Frankly, my experience in two years is to not take you at your assurances but to ensure that we see something concrete, in writing, and that we actually vote on matters.
I'll leave it at that. I'm sure we'll want to comment further.
Mrs Sullivan: There are two points I want to make. One is in reference to the response from the parliamentary assistant for the Minister of Citizenship. He suggested that the process being recommended in my amendment was too complicated and, by inference, that the process being recommended by the Progressive Conservatives was too complicated.
Think back to about four and a half minutes ago, when we were dealing with an absolutely wacko proposal of categories, subcategories, intervening categories, for one purpose only, and that is to gather people together to make recommendations for other people to sit on a committee. If you want to see complications, look at what the government has designed in its headiness for the composition of the advisory committee on appointments. What I am recommending is absolutely straightforward. Depending on the need, the government can appoint as few as perhaps five or six part-time people. If there are numerous complaints, the government has, through the Lieutenant Governor in Council, the freedom to appoint additional numbers. The process is a simple process. People who have a complaint bring their complaint to the board, which may only have one employee, which may, depending on the requirements of the process, have more than one employee. A panel of one or three people reviews that complaint, makes determinations as to whether the advocate acted properly, makes determinations about whether the commission acted properly, makes a decision, and it's over. It is totally independent from the commission, which is extremely important, because the commission itself may be the subject of complaint.
We don't know now, because we haven't got the information from the government, precisely what the scope of the work of advocates will be. We don't know, therefore, the nature of the scope of the kinds of complaints that can arise if there are problems with the work they're doing. This is a very straightforward proposal.
As I complete my remarks I want to move on to the observations made by counsel to the Minister of Citizenship. I want to tell you, it is outrageous that the government is now, while we are in clause-by-clause consideration of these bills, musing about a new policy determination about some new kind of guideline about how a complaints process would operate.
What have they been doing? This legislation has been on the table for months. There have already been 200 amendments put forward by the government. Between the opposition parties, we've brought forward about 50. What on earth have they been doing? We are in clause-by-clause. We are down to the short strokes here. What is going on?
Mr Winninger: Just briefly, I don't find the government's position at all mind-boggling here. A reference was made to professionalism. Certainly children's aid workers are professionals, and they have a much less cumbersome and complex complaints procedure under the Child and Family Services Act.
If the opposition is serious in its quest for a complaints procedure here, why can't the opposition, either party, put forward a much simpler mechanism, similar to the one in the Child and Family Services Act for a complaints procedure? Surely children are entitled to the same attention and respect that vulnerable people are, and if a simpler complaints procedure is adequate and appropriate under the Child and Family Services Act, surely it would serve us well to look at that here.
I would also say that we're not dealing with questions of professional licensure here, as we would be in the case of other professional bodies, so the same kind of considerations that apply to some of the self-governing professions may not be applicable here. I don't see why you don't put forward something a little simpler, a little more straightforward, that doesn't require a cumbersome mechanism and structure.
I don't think it behooves the opposition to ask, why has the government not done this sooner? We've been responsive at all stages to concerns that have arisen, and amendments are being made as we go through clause-by-clause. I don't think you can have it both ways. You can't say, "This government doesn't care about some of the positions that are put forward," and then say: "The government is responding to some of these positions put forward. Why are you doing it now instead of earlier?" I don't think you can have it both ways.
Mr Malkowski: I certainly appreciate the concerns that have been raised by both the PC and Liberal parties. Just for clarification, we are not going to be able to support your two motions as they stand. However, we would certainly consider it if either party were to develop an amendment using, as mentioned, a model similar to the Child and Family Services Act model.
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Mr Jim Wilson: I think, to take a rational approach to this problem, we should perhaps agree to stand down this motion and the PC motion. I do take offence at both the parliamentary assistant and Mr Winninger putting the onus on opposition parties to come up with the exact wording of a complaints procedure process as fundamental as simply accountability for advocates in the commission. That's a poor excuse, and if you think that's going to wash in the public, you've got another think coming.
We have extremely limited resources as opposition members. We have been given the tightest time frame that, in my nine years around this building -- two years as elected and seven years as an assistant -- in politics, I've never seen such a workload put on legislators as this legislation has required, in addition to all the other regular duties we have as representatives of the people in our ridings and in our critic responsibilities, in such a tight time frame.
You're the ones with the thousands of bureaucrats whom you can call upon to help you with government business. You should not be pretending to be surprised that this would be a concern of the opposition parties, if you were listening at all during the public hearings. You cannot pretend to be responding to what you heard during the public hearings and then simply say that because we brought forward motions too complicated, in your words, that's your excuse and you're going to rest on that and, therefore, nothing will be done.
I think this should be stood down. We've done our best. We've put in writing what both opposition parties feel would be a fair review process, both a review board and a complaints review committee, and the onus is on the government to come forward with what it feels will be a workable compromise.
I think that it's only fair as humans -- because we've been very cooperative to date with the dictates that have come from the Legislature through your party. The fact that we're still sitting here and putting up with this, I think is a real credit to both our patience and our willingness to cooperate and try to be responsible legislators. To be told that somehow we're irresponsible and not putting forward workable amendments, frankly I take exception to and throw the ball back in your court. I want to hear exactly what the government intends to do in this area.
Mrs Sullivan: I will probably reiterate some of the statements that have been made by Mr Wilson. But I can tell you that I'm very angry that on these bills, which have singular public importance, we are operating under a time allocation, we have seven days for the consideration of four bills that will affect every single person and every single health care practitioner in this province. We now hear that fairly simple proposals and principles for a review procedure have been described as too complicated but that none the less it is the obligation of the opposition to come forward with a complaint process that people have been demanding through the entire public hearing process.
I was discussing yesterday with one of the new people who've been hired by the ministry or the minister to deal with the Advocacy Commission. She indicated to me that there are 18 people in the minister's office working on the implementation of this act. This bill has not passed yet. We are still in committee. We are in clause-by-clause. Eighteen people working on the implementation of this thing already, and the government can't even come up with an amendment on how we're going to deal with complaints about advocates or complaints about the commission, when people were before this committee during the first hearings and the second hearings saying it was a necessary part and a necessary change required. I cannot believe what I'm hearing. I am so angry about the approach of the government in this area.
You can take all the credit you want for being responsive; the legislation was so badly drafted in the beginning that you had to be responsive.
Mr Malkowski: I'd like to respond to the seriousness of the concerns that have been brought up by both the Liberal and PC members. I do think that it's important to say very clearly that we're not going to be able to support either motion. However, we will very seriously consider the concerns that have been raised and will bring those concerns to the minister's attention for further consideration on this matter.
Mrs Sullivan: I would like to stand down my motion.
Where is the minister? Why couldn't the minister be here to deal with these issues on her own? We've asked that. As a full committee we asked that. She's in retreat. Well, that's great.
Mr Sterling: She has been in retreat for some period of time on this bill.
Mrs Sullivan: That's for sure. She doesn't know what's going on.
The Chair: Mr Wilson said to stand down both the Liberal and PC motions?
Mr Jim Wilson: That's correct, Mr Chairman.
Mrs Sullivan: I will stand down mine.
The Chair: Do we have unanimous agreement to stand down both?
Mr Malkowski: No, we will not support standing down the motion.
The Chair: We don't have unanimous consent to stand them down. Further discussion?
Mr Malkowski: The concerns are very serious, and I certainly will bring those concerns to the minister and we will consider developing an amendment that will respond to those concerns. I think we should call the vote on this.
Mrs Sullivan: Mr Chairman, throughout this committee we have cooperated in terms of requests from the government to stand down motions. We understand that the government indeed will have further requests to stand down motions as we proceed through this bill. We are making a simple request so that if replacement motions can be developed, they will be. We do not understand why the government refuses unanimous consent when we have been giving consent to the government to stand down issues. Where is the cooperation here?
Mr Owens: Mr Chair, I'd like to request that the parliamentary assistant reconsider his stance with respect to not standing down these two motions. As Ms Sullivan and Mr Wilson have indicated, we have in fact worked fairly well, albeit a little sparky from time to time, but I think that these issues are serious and that we need to take a look at that. I again would ask the parliamentary assistant to reconsider his stand.
Mr Malkowski: All right. I am willing to reconsider that issue and I do agree that we stand down the motion.
The Chair: Do we have unanimous consent to stand down the Liberal and the PC motions? Agreed.
Does this committee wish the clerk to order in dinner?
Mrs Sullivan: Given the response of the government with respect to the last amendments which were put forward, we may have some work to do over our dinner hour and I would frankly prefer to take a break to do that, so that we can have an amendment that may be acceptable to the government, since the government doesn't seem to be able to take its own responsibilities.
I would also like to recommend that we break for supper now. I think that we're moving to a section of the bill which will require some discussion with respect to the capability of instructing an advocate, and I think it might be useful if we broke now and perhaps returned at 7.
Mr Malkowski: I think it would be helpful if we at least ordered food in, and I agree that we should adjourn until 7 o'clock and resume at 7.
Interjections.
The Chair: All right. This committee will stand recessed until 7 pm.
The committee recessed at 1751.
EVENING SITTING
The committee resumed at 1932.
The Chair: I call this meeting back to order. We will now be going to a Liberal motion on subsection 15.1(1.1). Any comments?
Mrs Sullivan: I think that when we look at the sections of the bill, we're dealing in these amendments which are before us with the provisions for uninstructed advocacy. I think we all know that there are some delicacies involved in this area, and one of the things that's of concern in relationship to the bill as it's drafted is that the definition of the capacity to instruct an advocate or for the advocate to determine that the vulnerable person is in fact incapable of providing that instruction, or capable of providing that instruction, has been left out. The bill is silent in those areas.
I think we know that the government recognizes that in fact there is a gap here because the government itself has put forward a motion, not in the same place that I did, but it happens to follow, which is fairly useful. The government's motion is subsection 15.1(4). I've put my motion forward in subsection 15.1(1.1) to include a statutory guidance for the capability of the vulnerable person to instruct an advocate.
What I have done is to look back at the common law with respect to capacity to bring forward my amendment, indicating that in order to instruct an advocate, the vulnerable person should understand the information that's relevant to giving the instructions in the circumstance and to appreciate the consequences of those instructions.
By definition earlier in the bill, a vulnerable person is a person who is physically or mentally disabled and who is unable to express his wishes or ascertain or exercise his rights or who has difficulty in doing so. One of the very issues then becomes that the vulnerable person is less vulnerable in being able to provide the instructions or to have a will, to have an intent. The difficulty comes in exercising and communicating what that will is and in achieving rights with respect to the expression of that will.
My definition provides a dignity to the vulnerable person in that in the first section it provides an indication that the person, who is defined statutorily earlier, is not only disabled and so on, but gives the benefit of the doubt to the person that he, while disabled, while unable to express his wishes, while having difficulty in doing so, is none the less able to understand the information and the consequences of the factors that are a part of providing instruction to an advocate.
The second part of the capacity or capability to instruct that I've included in my amendment relates to the capability of the vulnerable person to express in some manner his or her instructions or wishes. We know that the communication of disabled people, depending on the nature of the disability, can vary. We learned about many new methods of communication, for example, that people associated with persons who have autism are developing and that in fact may provide a new vehicle for communication, but there are other methods. There can be writing, there can be Braille, there can be machines, there can be computers, there can be American sign language and there can be a number of methods of communication that in fact respond to the issue of having difficulty in expressing the wishes or the will or in exercising rights.
We feel that the capacity to instruct is an important part of the bill. In my view, even with the addition of the government motion in this area, our definition in fact would stand. They could work in combination as part of the same section if the government wanted to do that. We feel that it reflects more closely the common law than does the government motion and recommend strongly government support for this amendment.
Mr Malkowski: I appreciate the concerns that have been raised and the points that you've brought up. The government is not going to be able to support the motion, however, because we have already introduced what we feel is a more appropriate definition of capacity to instruct an advocate.
Mrs Sullivan: There is no conflict between the motion that I have put forward and that which the government has put forward; indeed, they could both work in tandem. The government's motion indicates that the vulnerable person, to be capable, should be able to indicate a desire for advocacy services. That would work in tandem with ours. In fact, if anything, it's more limiting than the amendment which I've put forward.
There is no conflict between the two amendments and in fact they could work well together. My amendment reflects more carefully existing common law with respect to capability or capacity, understanding that the information in my motion indeed could include what the government has included in its amendment, which is an indication of a desire for advocacy services.
Mr Malkowski: I'd like to ask our legal counsel to respond to Mrs Sullivan's concerns.
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Ms Perlis: I certainly would agree with you that your test is much closer in reflecting the common law standard of capacity. The government feels that the common law standard of capacity is more appropriate to a lawyer-client relationship than an advocate-client relationship.
The differences between the two relationships turn on what an advocate can do for a client as compared with what a lawyer can do for a client. An advocate merely stands in the shoes of the client and can really only do for that person what he or she could do for himself or herself, whereas a lawyer has a particular expertise. Lawyers can institute an action. The consequences to the client are potentially far more severe, such as incurring the costs of an action which turns out to be unmeritorious in the eyes of the court and so on, whereas the advocate is really speaking in the shoes of the vulnerable person.
As such, we feel the appropriate test is that the vulnerable person is able to indicate a desire for advocacy services, that he wishes help in some way, and that the purpose, that is, the outcome, is something he is able to indicate. I think one of our difficulties with the Liberal motion is the notion of reasonably foreseeable consequences, which I think we feel is perhaps too complicated or too high a standard in situations where the person knows the end result he wants and it's sort of simple and clear.
The consequences are not as far-reaching as perhaps they might be if, for example, you have to explain to a client the consequences of issuing a petition for divorce. All the advocate can do is ask for or argue for or negotiate for the very same thing that the client could go and ask for.
Mrs Sullivan: I think, given the powers that are provided to the advocates under this act -- the power to access clinical records without instruction; the power to enter private residences and residences in which more than one person lives without consent; the power, in this case, when there is no instruction, to take actions perhaps without even knowing what the nature, will or intent of that person is -- it could include, for example, if the decision of the advocate is that publicity is the only way to attack a particular issue, without any instruction or concurrence from that vulnerable person, to proceed and take an issue to the press.
We certainly have concerns which will be expressed later with respect to access to documentation. As you know, we have raised issues and have an amendment put forward with respect to health records. There are entire other sets of records that this bill would enable advocates to have access to, in this case, without the consent of the person, without the express instruction or expression of will of that person, because the person is apparently incapable of expressing those instructions.
I think the government's motion on its own is pretty loosey-goosey. If you want to say, "Yes, I want an advocate. I want an advocate to come in and help me deal with a problem," that is what the government says is the test for a vulnerable person in dealing with an issue he is having a difficult time dealing with on his own, without someone who can assist in speaking for him or in accessing services or achieving certain rights.
But that isn't enough. If a person is capable of instructing, he should be capable of not only saying, "Yes, I want to see an advocate," but: "I want the advocate to proceed in a certain way. I understand that these are the circumstances surrounding what I want him to do on my behalf, because I can't do it myself, and I want him to understand that I know certain actions he will take, for example, going to the newspaper with my story, perhaps will affect my life for ever."
I think in fact my test is a far more reasonable test of capacity than the government's is. The government's is not adequate. It could be, as I say, appended to my own as an additional section, but it is not enough to protect the vulnerable person.
Mr Malkowski: Perhaps legal counsel can follow up on that.
Ms Perlis: I think one of the concerns that's reflected in the motion is if the test for capacity to instruct is too high, there will be a number of people who are unable to meet the test and yet certainly don't fall within the serious harm criteria for non-instructed advocacy, and we certainly wouldn't want those people to be recipients of non-instructed advocacy services, because they are able, perhaps not to meet a capacity test but to indicate wishes, preferences, ideas and outcomes that would nullify any sort of non-instructed advocacy.
I think the concern is that there be some provision to meet the needs of people whose life experience and ability to meet such a cognitively high test would disqualify them yet who certainly can give the kind of instructions that are the subject of the intent of this act.
I'd also just like to make the point that an advocate cannot within this act do anything against the instructions or wishes of the vulnerable person. If the vulnerable person were to say to the advocate, "I don't want you to go to the press," then it would be incumbent on the advocate to explain, I think, to the person what he was going to do. In an instructed situation, he couldn't do that above the objections of the vulnerable person.
Mrs Sullivan: But we're dealing precisely with that scenario, where a person is incapable of instructing the advocate not to go to the press. In fact the advocate will be able to operate in an independent manner, putting himself in the shoes, as you describe it, of the vulnerable person, but clearly without any instruction and in fact protected by the act.
Ms Perlis: But not if we have a lower threshold for instructed advocacy. In that situation, more people will be caught within instructed advocacy and the limits imposed on the advocate.
Mr Sterling: Who makes the determination whether a person is vulnerable or not vulnerable?
Ms Carter: I think maybe by asking that question you've shown what is wrong with this, that we're going to have to measure. The point is that if a person is capable of having wishes and being able to communicate, then he or she qualifies for advocacy without any further test being required.
Mrs Sullivan: That's not the question.
Ms Carter: The point is very well made that the sole function of an advocate who is being instructed at whatever level is to carry out the wishes of that person.
Mr Sterling: In the ideal world, it would be nice to believe that an advocate was always going to act in the best interests of the vulnerable person.
Ms Carter: There's a difference between best interests and wishes, and that's one of the differences we're making here.
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Mr Sterling: In terms of the vulnerable people we're talking about, we're talking about a whole range of individuals. We can have people who understand to a limited degree what is happening to them, we can have people who understand to a very great degree what is happening to them, like the Justin Clark situation, or we can have people who have very little comprehension of what is happening to them.
If we take the higher end of the scale of people who don't understand very much about what is happening to them, it puts the advocate in a very strong position in terms of his role in what is going to happen to this vulnerable person. Therefore, if it sort of starts to switch the balance as you go up the scale, you start to get into the area of who in fact is controlling the situation. In my view, it would take a very strong advocate to resist the temptation to put his wishes in the shoes of the vulnerable person.
So the control over the advocate is very important and there is nothing in this act as it is now stated where the advocate has to justify his decision in stepping in in terms of those upper decisions. In other words, if he thrusts himself upon a vulnerable person who is at or near the far end of the scale, who does not have the ability to repel or to question the advocate, we're into serious problems.
Ms Carter: Then the advocate is contravening the very basis of what he's being asked to do by this act.
Mr Sterling: Who's going to put the check on him, Jenny?
Mr Owens: Is that the point of the amendment? What we're talking about is a test for a person to be able to instruct an advocate. I don't understand where you're going with your --
Mrs Sullivan: The test results in the advocate acting independently of the person because the person is not instructing the advocate.
Ms Carter: But that's not permitted. That's not part of this act, except in the case --
Mrs Sullivan: How are you going to anything else?
The Chair: Order, one at a time. Mrs Sullivan.
Mrs Sullivan: I'd like to start with the question that Mr Sterling asked: Who determines if the person is vulnerable? Frankly, the advocate is going to determine if the person is vulnerable. We know that; that's one of the powers of the advocate.
Next, who is going to determine if the person is able to instruct the advocate? The advocate is going to determine that. Who is going to then be acting for that person, in his shoes, if you like, but without any knowledge because there has been no expression of the will of the person? The advocate.
Those are the issues and whether the wording, Jenny, is in the best interests of the person, whether that's the concept or whether the concept is standing in for that person, none the less, the advocate, who may be meeting that person for the very first time, may have absolutely no knowledge of what the will of that person is.
It seems to me that the test for who is incapable or capable of instructing the advocate should be a very high one so that the advocate doesn't have the authority to simply prance in and make decisions and take actions or whatever in the shoes of the person without having moved to the absolute maximum to ensure that that person in fact is capable of expressing his wishes, expressing his will, about the nature of the action that's going to be taken in his shoes.
Ms Carter: When you say "in his shoes," I'm not quite sure what you mean, because what we're assuming is that that person can in fact express some wishes; otherwise, he's not a fit subject for advocacy, unless he is in a state of dire peril, which is the exception we have made to that.
Mr Malkowski: Responding to Ms Sullivan's and Mr Sterling's questions, there are three points that I think need to be raised. We have to clarify that the advocate can only act when there is a risk of serious harm, if he or she is acting without instruction. So if an individual does not want an advocate, he or she can simply tell him or her to go away, and it's a very simple case. The advocate follows those people's wishes.
Maybe you can look back at subsections 15.1(3) and 15.1(2). Subsections 15.1(2) and 15.1(3) do not apply unless the advocate has taken all reasonable steps to determine whether the vulnerable person is not able to instruct the advocate.
What we're saying is, when you're talking about setting up a test of capacity, that in fact can limit the vulnerable person's ability to express himself or herself. We don't want to set up a more limiting test. In fact, we want to make sure that the vulnerable person is given all reasonable steps to express himself or herself. So the test for capacity should not be limiting in any way.
Mrs Sullivan: I think that what the PA to the minister has said there is very interesting. We have in subsection (2) a requirement that the advocate may provide advocacy services, which can take a variety of courses, to a person without instruction if that person (a) cannot instruct the advocate. That is where, in fact, the capability of instructing the advocate should kick in.
I'd give you the example of a person who is physically disabled and is unable to take some action as a result of that disability. That person may also be fully capable mentally of instructing the advocate and in fact that might be the situation with most people. Where a person is unable to understand the information that's relevant to the instructions, there is an additional disability involved there.
At that point, the advocate has another clear test. There is not only the physical disability, which may make it very difficult for the person to communicate, but also a question of mental capacity which may mean that it is difficult for the person or that the person cannot understand some of the issues associated with the instructions.
The reason we're very concerned about this is that we see that the advocate will be able to act, despite the provisions of the bill that the advocate can't make decisions on the person's behalf. The advocate's defence to that question will be, "Well, we were acting by standing in the shoes of the person, by putting ourselves in the place of the person on his behalf."
In fact, unless the capacity to understand the instructions is there, there should be an additional onerous duty on the advocate to ensure that the instructions and the will of the person are paramount. It's more than a matter of saying, "I want an advocate." It's a matter of saying, "I want an advocate to assist me in certain areas."
Ms Carter: And that's what we're saying in our amendment.
Mrs Sullivan: It's not what you're saying.
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Mr Malkowski: I think we have agreed that there is a very heavy requirement for the advocate to make every possible effort to communicate with the individual, and People First has expressed its concerns on that issue.
Mrs Sullivan: Mr Chairman, I'm getting nowhere here; we might as well move on.
The Chair: Further comments?
Mr Wessenger: Before we vote on this, I was just looking at the Liberal motion and also our motion. I think a combination of the two might be possible, which would read as follows, and I'll just throw it out for thought:
"A vulnerable person is capable of instructing an advocate if the person is able to indicate a desire for advocacy services and is able to express, in some manner, his or her instructions or wishes."
If the problem is with the latter part of the government motion, that seems to me somewhat more precise.
Mrs Sullivan: Can you review that again? You'd go with 15.1(4) as put forward by the government?
Mr Wessenger: Yes, for the first part.
Mrs Sullivan: And then move to my 15.1(1.1)(b)?
Mr Wessenger: Yes.
Mrs Sullivan: Well, it's an improvement. Perhaps we can have counsel do a draft on that and stand this section down.
The Chair: Stand them both down?
Mr Wessenger: Yes.
The Chair: Agreed? Agreed. That will be subsection 15.1(1.1), the Liberal motion, and subsection 15.1(4), the government motion.
Mr Jim Wilson: May I just make a comment on that? Having reviewed the summary of recommendations from the groups, I think what's key in the Liberal motion and what makes it so important is the ability or some capacity to understand the advocacy services being offered and the information relevant to that. I hope the government will keep that in mind in drafting compromise paragraphs.
Mr Wessenger: If I might just respond and give an example of the situation we're going to deal with, an example would be of an elderly patient in a nursing home whose sheets are not being changed often enough. She could express a wish to an advocate to have something as simple as that dealt with. It's to ensure that type of situation does get dealt with; that's the type of situation we want to ensure is covered, that this person would get the advocacy services, a very simple advocacy service, really, but I think very important to the individual.
Mr Jim Wilson: Doesn't that imply some understanding on behalf of the elderly person that lying in soiled sheets is not good for him? Having had the opportunity to listen to the debate that has gone full circle since I've returned from dinner, I think we are on similar but separate wavelengths. I hope you understand the importance of the term "understanding" in the Liberal motion.
Mr Wessenger: I should clearly indicate that my suggestion of a compromise motion was because --
Mr Jim Wilson: But it's a hollow compromise.
Mr Wessenger: -- there's some concern expressed about imprecision of language and the purpose for which he or she wishes to receive the service. I think it means the same thing as is set out in Ms Sullivan's 15.1(1.1)(b), but perhaps it is a little more precise from a legal point of view.
Mrs Sullivan: No, I think there is another issue here, and that is the actual capacity, if we define "capacity," by example, as we would under the common law, as we're moving towards in both the Substitute Decisions Act and in Bill 109, the capacity to understand the issues associated with the instructions required.
In your example, which is a simple example, the question Mr Wilson raises is a good one: Would the person understand that lying in sheets that aren't changed is something about which a protest should be made, about which a demand should be made, and therefore about which action should be taken?
For the purposes of the issues associated with non-instructed advocacy, that's the wrong kind of example to use. I think important care has to be taken in terms of defining what the capacity is to instruct. We will have some people who will have far more of a communications problem than others, but they will have no problem in understanding the issues associated with what they want or need.
Mr Owens: In terms of the Liberal amendment, clause 15.1(1.1)(b) addresses the concerns of the groups with respect to capacity and especially in terms of the non-verbal communicators that are able, in some manner, to express their wishes. However, when you look at clause (a), I think you obviate the good work you've attempted to do in clause (b) by establishing a test that's far too high. As counsel indicated, you may end up precluding some people who are quite able to understand but who, for whatever reason, cannot meet this test.
In terms of the example that Mr Wessenger used, is there a necessity to have an appreciation for the fact that lying in faeces is not a good thing to do? I don't think so. The individual simply being able to indicate to an advocate that he or she would like these sheets changed is certainly, in my view, a good enough reason to change them. Again, in terms of the test you're trying to set, I think you've overreached yourself.
Mr Winninger: I tend to concur with the remarks made by Mr Owens, and I'm particularly concerned that we seem to be ignoring the point made by Ms Perlis that we could have a gap here, that we could have vulnerable people falling through the cracks because we'll set too high a standard for capacity. I note with some interest that a lot of the language in the amendment is similar to what we have in section 6 of Bill 109, capacity to consent to treatment, which has to be a higher test. But here we need a lower test so that we don't have a gap between those who are unable to instruct an advocate, who will then not get an advocate unless there's a risk of serious harm. There are going to be a number of people caught in the cracks, who won't have uninstructed advocacy and won't have instructed advocacy. I think very deliberately the government introduced a lower threshold, a lower test, in our amendment. That's why I'm particularly concerned if we start changing that around and screening out a lot of people who could well benefit from an advocate. I hope I understood Ms Perlis's point correctly.
Ms Carter: To further pursue the same point, I think there's too much concentration in 15.1(1.1)(a) on the idea of giving instructions to a person who is supposed to be understanding information that's been given to them. What we're really looking at here is what that person actually wants, which is not a question of understanding what somebody else is saying; it's a question of them understanding, "I feel uncomfortable; there's something wrong here; something needs to be done," which is a far more basic thing. Maybe those wishes will be on a very simple and primary level, but they're nevertheless wishes that are coming from that person, and that is what we are looking at in connection with advocacy here.
The Chair: Counsel, for clarification?
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Ms Perlis: As we're not talking to a motion, I just wanted to throw in the idea that the reason understanding information is so critical to a test of capacity to make a decision about health care, or to make other important decisions such as personal care decisions or financial decisions, is because the capacity test is of the ability to make a decision. In order to make a decision, the person must be able to process the information necessary in order to make that decision, as opposed to this situation, where the person isn't making a decision. The test is their ability to tell someone what to do.
Mr Jim Wilson: I appreciate that, but look at the government motion in terms of wording. You not only have to be able to instruct an advocate -- for which we have agreement there from counsel -- but you have to be able to express the purpose. Now, if expressing a purpose for wanting the advocacy services is not implying an understanding of why, then I failed modern symbolic logic in university -- and I didn't.
Mr Owens: Your academic record isn't at question here.
The Chair: Finally, Mrs Sullivan, before we move on, as these two have been stood down.
Mrs Sullivan: Once again, the capacity argument that has just been put forward by counsel with respect to capacity to make a decision is in fact the exact same instance. The capacity here that's required is a capacity to make the decision with respect to the instructions to the advocate. There is a decision being made by the person: That decision is on what I want, what I need, what rights I need protected and what kinds of assistance I need in expressing those things; there are decisions being made to what limits I will allow an advocate to take my case and what limits I won't. There are decisions all the way along, and they are capacity decisions.
I understand this is being stood down for now.
The Chair: Then maybe we could proceed on this debate when we get the workable motion back in.
Mrs Sullivan: But I have a replacement motion for this section if we're ready to consider that now, or shall we stand it down until later on?
The Chair: As we're into the discussion, we could probably go with it right away, for the two we just stood down.
Mrs Sullivan moves that section 15.1 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:
"Capacity to instruct
"(4) A vulnerable person is capable of instructing an advocate if the person is able to indicate a desire for advocacy services and the purpose for which he or she wishes to receive the services and is able to express, in some manner, his or her instructions or wishes."
Would you like to speak to that, Mrs Sullivan?
Mrs Sullivan: I think that the argumentation has been made. This is basically the combination amendment.
Mr Malkowski: We find that this motion is acceptable.
The Chair: Further discussion?
Mr Sterling: I'm not going to support this amendment. I understand that both the government and the Liberal Party will, but we seem to be additive in terms of the testing of a vulnerable person, and I think that's wrong.
I would have preferred something which would have said, "A vulnerable person is capable of instructing an advocate if he understands what's happening around him and there's some indication or he can give some kind of communication," period.
As we continue to add more and more things, we're talking about situations which are very, very much on the borderline and I think we're making the situation worse rather than better.
Mrs Sullivan: You're going back to my original motion.
The Chair: Further discussion? Mr Owens.
Mr Owens: No, I'm sorry, I missed Mr Sterling's point. I was conferring with the person from the ministry. All I understood was we're making something worse.
Mr Jim Wilson: I think the point of our caucus was, the simpler the better in this area in terms of access to advocacy services. If you're going to have them, people should be able to access them.
Mr Owens: I think that's our view as well.
Mrs Sullivan: My motion's a better one.
Mr Owens: No, I don't think it is, as a matter of fact.
Mrs Sullivan: It is. The PA to the Minister of Health thinks it is. My motion is a much better one.
Mr Owens: No, perhaps a certain section of the motion is better, but clearly the whole motion --
Mr Jim Wilson: Let's vote.
Mr Owens: This may be the time for vanity press, but --
The Chair: Further discussion?
Mrs Sullivan: The PA to the Minister of Health thinks we've got a point on this.
The Chair: Seeing no further comments, all those in favour of the --
Mr Jim Wilson: Which one are we voting on?
The Chair: Is this the Liberal replacement or the government replacement? The government replacement?
Mrs Sullivan: I moved it, so I guess it's mine.
The Chair: You moved it? The Liberal replacement.
Mr Malkowski: Excuse me. Could we just have clarification here? Maybe if we had the motion in writing, if we saw it in writing first, we'd know what we were voting on.
Mrs Sullivan: Let's stand it all down then until we get it in writing.
The Chair: It's being Xeroxed right at this moment.
Ms Perlis: I understand from legislative counsel that her suggestion as to the place the ultimate section should go corresponds with the place in the government motion, which is a subsection (4). If we vote on it as Mrs Sullivan's motion, then it may be located somewhere in the bill that is less appropriate. No?
Mr Jim Wilson: She read it in as subsection (4).
Ms Perlis: Oh, okay. Sorry, I missed that.
The Chair: The committee has it in writing now. Shall we vote at this moment?
Mrs Sullivan: No, we're going to stand it down.
Mr Wessenger: Where is it, first?
The Chair: It's right in front of you.
Mrs Sullivan: I think he's going to do some chatting with his colleagues about it.
The Chair: Possibly we could have a five-minute recess.
The committee recessed at 2019.
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The Chair: I call this meeting back to order.
Mr Owens: On a point of order, Mr Chair: Perhaps a bit of a human element. Our co-counsel, Sibylle Filion, is spending her second anniversary with us tonight, so maybe a round of applause or some form of congratulations is in order for her ability to stay with us.
Mr Jim Wilson: A sympathy card.
Mr Owens: Yes, sympathies as well.
The Chair: Although that isn't a valid point of order, thank you for bringing that to the committee's attention. I'm sure we all offer our congratulations.
Mr Owens: Thank you, Mr Chair.
The Chair: Any further discussion on the Liberal replacement motion on subsection 15.1(4)? Seeing no further discussion, all those in favour? Opposed?
Motion agreed to.
The Chair: Ms Sullivan, would you like to withdraw your motion on subsection 15.1(1.1)?
Mrs Sullivan: I'd like to withdraw subsection 15.1(1.1).
The Chair: Mr Malkowski, would you like to withdraw the original government motion on subsection 15.1(4)?
Mr Malkowski: Yes.
The Chair: Thank you. Comments on Liberal motion subsection 15.1(3)?
Mrs Sullivan: Mr Chairman, this amendment is put forward because of the psychology of the responsibility of the advocate. If the onus is on the advocate to take absolutely every step to ensure that the person is capable of instruction, through whatever means, it seems to me that it's a more psychologically positive demand on the advocate than the wording as it is now.
That's the reason for this being put forward. I think that the change in the onus here would create greater demands on the advocate in determining if there is any method by which a person can communicate his instructions or wishes, rather than ultimately making the assumption that there are no further steps to be taken in determining whether the person can communicate. It's put forward in that way. It seems to me a more positive and demanding role for the advocate to take every step to ensure that the vulnerable person indeed can not only participate but act on his or her own behalf.
Mr Malkowski: We will not be able to support this motion because the possible consequence of changing the word "incapable" to "capable" is to reverse the legal presumption that the vulnerable person in fact is capable of instructing the advocate.
Mrs Sullivan: I think that if we look at instances, as we will be, of vulnerable people who, by definition, have difficulty expressing their wishes, what we see is a psychology where the assumption is that the person cannot instruct because there is a difficulty in communication.
What we're saying is, "Do your best, take every effort, make every singular movement to ensure that the person is capable." Are there devices that can assist them in expressing their wishes? Is there a way or a vehicle through which the person can provide instructions, rather than saying and utilizing the popular assumption that a person who has difficulty communicating is incapable?
Mr Sterling: I think we're really into language here and which side of the fence we start on, and I agree with Mr Malkowski that probably we're better to start on the side of the fence that he's involved in; that is, the assumption is that the person is capable and the onus is to prove that someone is incapable.
I would like to move at this time that you perhaps put the question on this particular amendment, Mr Chairman.
The Chair: If we put the question now, all the other amendments will fall.
Mr Sterling: I'm ready to vote.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the Liberal motion on subsection 15.1(3)? All those opposed?
Motion negatived.
The Chair: Okay, we go back now to the reprinted government motion on section 15.1, as amended. Discussion?
Mr Jim Wilson: What's "as amended"?
The Chair: We had the amendment with subsection 15.1(4).
Mr Jim Wilson: Okay. That's it?
The Chair: That's it. That's the amendment. We're back to the reprinted now. Seeing no discussion, all those in favour of the government motion on section 15.1? Opposed?
Carried.
The Chair: On the government reprint, section 15.2, any discussion? Seeing no discussion, all those in favour of the government motion on section 15.2? Opposed? Carried.
The Chair: Okay, the next one will be the Liberal motion, subsection 15.3(3).
Mrs Sullivan: This section is added simply to underline that a person who has provided instructions can change, refuse or deny those instructions on a later occasion. It seems to me that's not very clear in the bill, and while it may be implied, it's a useful addition simply to have it written down. I don't think it changes the policy. I just think it's a useful addition.
Mr Malkowski: The motion is certainly acceptable and we will support it. We feel the amendment simply clarifies the right of a vulnerable person or substitute to revoke or to revise instructions, so we will be supporting it.
Motion agreed to.
The Chair: Okay, the government reprint, section 15.3, as amended.
Carried.
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The Chair: PC motion, section 15.4. Any discussion?
Mr Jim Wilson: We think the motion's self-explanatory and would like to hear any concerns that other members may have.
Mr Malkowski: We won't be able to support the motion because there's really no need for this provision, as a person who does not accept that he or she is a vulnerable person may simply decline the advocate's services.
Mrs Sullivan: We'll be supporting this motion because indeed there are circumstances where, first of all, the decision is made by the advocate that the person is vulnerable or the determination of vulnerability is made by the advocate. The person, under this bill, could never be advised of that situation or circumstance.
There are all sorts of implications, including the determination of vulnerability, including access to records of that vulnerable person, with or without that person's consent, and without the consent the access to the records is only triggered if the person has been determined to be vulnerable by the advocate. Surely a person should have the right to know that determination has been made.
Mr Jim Wilson: I certainly agree with the comments made by Mrs Sullivan. In addition to that, I think Mr Malkowski would like to consider that there's no clear recourse under this bill once a person has been labelled vulnerable. There's no review of that. This motion is intended to introduce some very important safeguards that I would hope, upon second reflection, the government will reconsider its position.
Mr Sterling: The point, I think, in addition to those raised by my colleagues, is that if we have the extreme cases, as we are talking about under section 15, the advice to the person that an advocate is acting on his or her behalf may be of interest to family members and to others, to the doctors or whoever else is involved with the care and concern of that vulnerable person. I don't think that the advocate should be acting, I guess you would say, without any kind of other person knowing that he's acting or not acting. Therefore, I guess it's a form of notice in what I am saying as well. I think it's a safer system if you have that kind of check on it.
Mr Winninger: I can't really agree with the comments made by opposition members with both parties on this. If we start with the premise that an advocate can be someone as simple as a friend, that it's a benign intervention -- not a necessary evil like guardianship could be construed to be or treatment is perceived to be -- why do you need to build in all these safeguards? All I can see is that it will make a lot of work for lawyers. I know there may be some lawyers on the opposition side who will be looking for work after the 1995 election.
Mrs Sullivan: Look to your own. How are jobs in London these days?
Interjections.
Mr Winninger: But I don't see any benefits in this section that go beyond that.
Mr Jim Wilson: I think also, if you follow the presentations made on two occasions by People First of Ontario, it's the label of being labelled vulnerable that can be very damaging, from its point of view. This at least gives, as I said, some review of that and then the person's aware.
Mr Malkowski's comments simply refer to the fact that you can walk away from advocacy services. You can tell the advocate to get lost, but you're still labelled. I assume advocates keep records of their visits and their determination, and this allows that to be undone if it was found to be not reasonable in the first place or if the label was found to be unjustified. I think it's just a very reasonable safeguard the government should accept.
Mr Sterling: When somebody is representing somebody else as a lawyer -- and I have no desire to get back to a profession which I left five elections ago --
Interjection: Hear, hear.
Mr Sterling: But if that ever should happen, I would imagine that whenever a client came through the door, I would get a retainer from that client.
With regard to the representation that's made by an advocate under section 15, there is nothing there which essentially retains the services of an advocate. We have a person who is vulnerable, who can't communicate, who may or may not understand what's going on around him. I would think that some method of formalizing the representation of that person's interests would be best in terms of people around or concerned with the rights of that individual knowing that this advocate was there and that the formalization of that is very, very healthy, both for the commission and for the individual. I think that sort of expresses the view of the amendment.
Mrs Sullivan: I really want to underline that the labelling of "vulnerable" triggers the right of other people, third parties, to take all sorts of action with respect to that person, including access to records. Because the advocate is doing the categorization, if a person whom an advocate sees as having difficulty in expressing his or her wishes and so on, and therefore the advocate categorizes that person as vulnerable and is able to take action, and the person himself or herself doesn't see himself or herself that way, there is no route for that person under which he or she can say, "I don't want that in my file, period."
Mr Jim Wilson: It's also, I think, a useful mechanism for the commission itself. If a vulnerable person wants to challenge the labelling, as this motion would allow, it helps the commission to review the decision made by its own advocate, and I don't see any problem with that either. It's internal and simply is checks and balances.
Ms Carter: It seems to me an advocate is entitled to have access to the person's records without his or her consent only if he or she is incapable of giving or refusing consent. Otherwise, presumably, they would have to give it.
Another point is that I think we're getting into rather strange realms with this business of labelling because, after all, what we started out with is a situation where some people are vulnerable because they have been given a label and people therefore refuse to treat them as though they are the capable human beings that they may in fact be. So I think to start to talking about "vulnerable" as a label is getting rather ridiculous. It's just saying you can't help people because you might then be leading to the inference that they need help.
Mr Jim Wilson: Just briefly in response to that, I did include in my remarks the fact that People First felt very strongly on labelling as vulnerable individuals. I'm not an expert on it, but I take their word for the fact that people do get labelled and that at times that can cause concern and problems.
Ms Carter: Perhaps they need an advocate to protect themselves from it.
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Mrs Sullivan: I'd rather use an ad hominem argument, and I understand that's the weakest one, but I'll tell you, my mother is a stroke patient. She would fit into the definition of vulnerable as it was included in this act. She would be outraged if an advocate labelled her as vulnerable because she fit that definition and was able, under the section with respect to uninstructed advocacy, to take steps in relationship to obtaining clinical records and other records because the advocate simply made that decision. This route of appeal is a protection for her.
Mr Sterling: We always assume under this act that the advocate and the client, the vulnerable person, are acting in concert. That may not necessarily be so. I would hope that in 99% or 95% or just about all the cases that would be so, but in the cases where it is not happening, then that vulnerable person may want, for instance, to retrieve the records the advocate has gained access to on his or her behalf.
How does the vulnerable person exercise that right? I would submit that this kind of appeal mechanism allows the vulnerable person to confront the advocate in front of the commission and say, "I don't want this person out there claiming he's representing me any more, and I want all the records which he or she has obtained on my behalf." We're not talking of all the cases -- very few of the cases -- but when you're creating the powers that you can give or an advocate can get under this act, then you must put in the complementary safeguards, and this is the safeguard which we consider as appropriate in this act.
Mr Malkowski: I appreciate the concerns that have been raised by both the Liberal and PC members, but I'd like to emphasize that the advocate is only going to act on instruction from the individual, or without instruction if there's risk of serious harm. It's also important to note that People First also said it wants advocates to be available to them. They made that clear.
Mr Owens: In terms of the concerns expressed by members opposite, I can't see anywhere in the act thus far where the advocate has the ability to (a) label a person as being vulnerable and then (b) move off into whichever direction he or she wishes, without any kind of consultation with the person he or she is allegedly advocating on behalf of. I'm not sure that addresses the point.
In terms of Mr Wilson's comments with respect to People First, I think he's clearly mixing apples and oranges and trying to come to some kind of conclusion on this amendment. Yes, People First clearly resist being labelled, but in terms of the issue the PC caucus is trying to address, I think he's trying to hit a mark that just isn't there.
Mrs Sullivan: I think that the point that Mr Owens made with respect to the advocate not undertaking any activity without the involvement of the vulnerable person is quite incorrect. The issue in many cases here that would be in there relates to non-instructed advocacy.
Mr Winninger: I keep coming back to section 15.1(1), which says, "An advocate who is providing advocacy services to a person shall not do anything that is inconsistent with the person's instructions or wishes."
Surely you can't get a more mandatory statement than that. So it's incumbent on the advocate to follow the wishes and instructions of the vulnerable person, and I think you're setting up a conflict here which just doesn't exist in actual fact.
Mr Sterling: The problem with the system as envisaged as far as I can see is there's no point of engagement or disengagement with the vulnerable person. There's no point which says, "You're now on board; you're now my client," or there's no point in the system which says, "You are no longer my client." How does the vulnerable person or people close to the vulnerable person, or both, determine whether the advocate is off seeking information about him, advocating services which he may or may not want? How does he know when the engagement starts and when the engagement ends?
Mr Jim Wilson: Mr Winninger makes a good point, but the next subsection deals with non-instructed advocacy. That's what we're trying to get at. Just take a moment to read that quickly.
Mr Owens: Just in terms of the comments from Mr Sterling, clearly it's not the advocate who decides whether his or her services are no longer required. The amendments we have passed thus far clearly make it a client-driven process, as opposed to the advocate imposing his or her services.
Mrs Sullivan: Unless a client can't drive.
Mr Winninger: I seem to be responding interminably to Mr Wilson's points, but subsection (2) only comes into play if there is a risk of serious harm. So that's going to essentially limit the number of cases where subsection (2) comes in. Furthermore, subsection (3) says subsection (2) does not apply unless the advocate has taken all reasonable steps to seek instruction.
Mr Jim Wilson: That's silly. Mr Chairman, on a point of order there.
Mr Winninger: It's a conjunctive -- "and."
Mr Jim Wilson: But clause (2)(a) says if "the vulnerable person is incapable of instructing an advocate."
Mr Winninger: And "there's a risk of serious harm."
Mr Jim Wilson: Sometimes that becomes rather a subjective decision an advocate may make, that a person may disagree with, hence we're trying to introduce some safeguards.
Mr Winninger: We accepted safeguards like "reasonable risk." We took the word "reasonable."
Mr Jim Wilson: You were on a roll, and I'd encourage you to continue along that line.
Mrs Sullivan: I want to go back to the question of clause (b) as a protection, the risk of serious harm, once again for the person who does not want to be classified as vulnerable and therefore have all the other functions of the act. I agree with Mr Sterling that this will happen in few cases, but the question is who determines, who makes the judgement about whether there is a risk of harm.
In presentations with respect to Bill 109, we heard many examples of instances where, by example, an Alzheimer patient may have complained to other people, and that would lead an advocate to believe there are reasonable grounds to suspect serious harm. The advocate may well take steps in association with that instance when in fact the person is not vulnerable. He will now be in a file and will now have that file existing.
I just don't understand why the government is so adamant about not including this when it's just a minimal protection for a person about whom a judgement has been made, a determination has been made, and action has been taken which, in the case of uninstructed advocacy, is highly intrusive.
The Chair: Counsel, for clarification?
Ms Perlis: I'm just going to point out that there is a check on the non-instructed advocacy situation -- that is, the duty imposed on the advocate to report non-instructed advocacy situations to the office of the public guardian and trustee under section 30. Mr Fram isn't here to speak to the interaction between this bill and that bill, but in any situation in which an advocate has offered or provided services to someone in a non-instructed situation, he or she is mandated to report that to the office of the public guardian and trustee. That is a check and balance.
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Mrs Sullivan: That's exactly the point. It's another file. Now it's gone. It's not only with the commission, it's with the PGT. The person doesn't want it to be anywhere.
Mr Jim Wilson: The point is, what if someone, as a vulnerable person, gets him or herself into this advocacy system and then suddenly decides: "This isn't really going the way I thought it would go. It's maybe causing more harm to my daily life than I thought. There are these files being created on me"? How do they get themselves out of that? As Mr Malkowski said, they can tell the advocate to leave, but meanwhile there's a paper trail and a trail of interviews and contacts.
Wouldn't it be nice if the person could go to the commission and say, "Look, upon second thought, I might have been in a delirious state or something for a while, but I'm fine now and I'd really like to sort of undo what's happened over the past month"? That's part of the point here.
The Chair: Further discussion? Mr Winninger?
Mr Winninger: I'll not make a contribution at this point.
Mrs Sullivan: He was going to tell us he was going to support this vote.
Mr Winninger: It wasn't met with great enthusiasm.
The Chair: Seeing no further discussion, all those in favour of the PC motion on section 15.4?
Mrs Sullivan: Recorded vote.
The committee divided on Mr Jim Wilson's motion, which was negatived on the following vote:
Ayes--5
Brown, Eddy, Sterling, Sullivan, Wilson (Simcoe West).
Nays--6
Carter, Malkowski, Morrow, Owens, Wessenger, Winninger.
Section 16:
The Chair: The government reprint on subsection 16(2): comments? Seeing no comments, all those in favour of the government motion, as reprinted, of subsection 16(2)? Opposed? Carried.
Section 17:
The Chair: We'll go to the Liberal motion, alternate 1, on section 17.
Mrs Sullivan: I think it's self-evident, Mr Chairman. I'd like this section of the bill struck out.
Mr Jim Wilson: I'd just note that we'll be supporting the Liberal motion and that it was identical to a motion introduced by our party, which we withdrew because of the redundancy in the two motions.
Mr Malkowski: We'll not be supporting that motion because it's important that we retain the advocate's right of entry.
Mr Sterling: Can I ask how many other delegated officials have this right of entry to these kinds of premises?
Mr Winninger: I'm glad you asked that question. The Ontario Law Reform Commission did a report on powers of entry, if I can just quote from it, because I think it addresses your question:
"In studying the legislative framework respecting powers of entry, it is clear that these powers have been conferred frequently. Express authority to enter land or premises, without a warrant, is granted in 223 public statutes, 61 private statutes, 86 regulations, and numerous bylaws."
I can give you a breakdown too on private dwellings versus non-private dwellings, a breakdown with or without warrants, but the evidence is really quite compelling. If you'd like me to table with the committee part or all of this research that Susan Swift did at my request, I can do that. It might save time now.
Mr Sterling: How many of those were agricultural acts?
Mr Jim Wilson: Or environmental acts?
Mr Sterling: It was quite a common process within the agricultural community too.
Mr Winninger: I've got a breakdown categorized by purpose. Out of 300 public statutes, health accounted for 55, general administration accounted for 115, planning and environment accounted for 39, safety accounted for 48, revenue 18, quasi-criminal 14 and human rights 11.
In addition, you have specific sections from various statutes that confer powers of entry, and in many cases the criteria are more lax than here. For example, a fish inspector in BC -- this isn't an Ontario act but a British Columbia act -- can come in and inspect fishing apparatus, and I suppose fish, in your own home without a warrant. So if we can allow a fishing inspector into a home, certainly where there may be a vulnerable person seeking the intervention of an advocate, that would be a stronger case for entry.
As I say, I have a lot of information here and much of it is not as stringent as the test we set out. The test is not dissimilar -- counsel can correct me if I'm wrong -- to that under the Child and Family Services Act where you have a child in need of protection.
Mr Sterling: How many of these acts concern people who are in a direct, adversarial position to the person who is controlling the premises?
Mr Winninger: These statutes apply to private residences regardless of whether the owner happens to be in an adversarial situation or not. Warrants are issued to enter premises. Take the child and family services worker. She often may be required to go into a residence of parents who strongly and vehemently object to her entry. You can call that an adversarial situation.
Here I think we have a vulnerable person who may wish to seek intervention or see an advocate, and there's a check on that, because if the vulnerable person decides he or she doesn't want to see the advocate, then the advocate leaves.
Mrs Sullivan: I think this issue is greater as an issue than what in fact is the current law. There have been recent court cases which are charter cases, and the laws have not been changed since those court cases have been put forward. They relate to the right to enter for purposes of search. The right to entry of the advocate in many cases will be for the purposes of perhaps searching for the vulnerable person, for evidence of abuse and generally observing the premises. In those instances, a search would be carried out within the meaning of the charter.
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We feel very strongly that Judge Dickson, who made the recent decisions which were affecting the statutes Mr Winninger has referred to, indicated that the purpose of the search and seizure, chapter 8, is "to protect individuals from unjustified intrusions upon their privacy." He stated that this purpose required prevention of such searches before they happen, not justifying them after the fact; thus, only a system of prior authorization could fulfil that purpose and therefore, the necessity for a search warrant would follow.
The only exception under common law would be when a consensual search was permitted; in other words, if the person admitted the advocate who knocked on the door and requested entry, then the normal protections against intrusions would therefore not apply. But in that case there is a different right to entry accorded to the advocate and different consequences would follow.
We feel that this is a charter issue, and that the warrant from the justice of the peace is a necessary part of the protection of people themselves in terms of their right to privacy and in fact a requirement of the Charter of Rights and Freedoms in Canada.
Mr Malkowski: We can also look at constitutional law opinions on that. I'll refer to our legal counsel to discuss that issue.
Ms Perlis: There are a couple of issues I want to speak to; one is to go back to the question that was posed to Mr Winninger about the number of statutes that have entry provisions that don't consist of agricultural matters and so on. I thought perhaps I'd cite a few for the benefit of the committee.
Entry powers are given to investigators under the Human Rights Code, to advisory officers under the Mental Health Act, to inspectors under the Nursing Homes Act, to the Ombudsman and officers under that act, to inspectors under the Public Hospitals Act, and to persons, including medical officers of health, under the Health Protection and Promotion Act, and of course the Child and Family Services Act provisions referred to by Mr Winninger.
On the subject of what the law is, I feel it's too difficult and complex to state baldly that there is no actual law I can state outright in this context, but I do feel it's important that the committee know that the current provisions as reflected in the reprinted bill are felt by the constitutional law people at the Ministry of the Attorney General to be able to withstand a charter challenge. They fall within the recent case law and the charter. We actually have three opinions and have consulted extensively with the staff at the Ministry of the Attorney General. It isn't just one opinion and our sections. In fact, our amendments reflect the very details of the constitutional opinions we have received.
Mr Winninger: With respect to some of the case law cited by my learned friend Ms Sullivan, there can be a distinction drawn between the right to search and seizure, for example, and what's being contemplated here, which is the mere right to meet with a vulnerable person. I would also say that there may be a finding that a right of a private owner is violated, but it's demonstrably justifiable in a free and democratic society under section 1 of the charter, the saving section.
I would just add that I think it's noteworthy that the report of the Ontario Law Reform Commission said: "In relation to the decision to make an entry, it will be noted that only approximately one fifth of all the powers conferred by the public statutes of Ontario limit the circumstances in which an entry may be made by requiring something more than a simple, discretionary decision on the part of the public official to whom the power has been given. Relatively few statutes, for example, require a warrant or prior judicial authorization in the form of a court order."
So I think this statute has safeguards built into it that are absent from four fifths of the statutes of Ontario, and I can't understand why it's being subjected to criticism.
Mrs Sullivan: With reference to the very issue Mr Winninger has raised, in the Supreme Court decision on this issue -- I'm reading from a briefing note with respect to it, but it includes quotes from that decision -- the court held:
"A search and seizure is reasonable only if authorized by a statute, and if the following three conditions are required by the authorizing statute." The first is a requirement of a warrant or other authorization to be obtained in advance of the search; a requirement that the warrant be issued by a person who is "capable of acting judicially," ie, impartial, and a requirement that the warrant be issued only after it has been established that there are reasonable and probable grounds to believe that an offence is being committed, ie, a sworn showing of probable cause.
Mr Winninger: We are not talking about search and seizure.
Mrs Sullivan: We are talking about comparable instances, where the advocate would be making searches (a) for the person; (b) for evidence of abuse, and (c) for a review of the circumstances within those premises or facilities.
Mr Sterling: It's difficult to compare the right the government is asking for to enter private residences and private facilities in this legislation. I believe the government in the past has been far, far too liberal in permitting delegated officials this right, but many of the instances we have heard talked about are either minor in nature in terms of their impact on the private lives of individuals or they have, in a lot of cases, commercial values or commercial interests at heart, so you have the entrance into a commercial establishment for purposes of obtaining books or obtaining samples etc.
When you look at the Human Rights Commission and bodies like that, you look at bodies which have a right to maintain a level playing field for the people who are in front of them and are therefore, in a way -- I guess you would almost call them a court. So I think it's difficult to compare the purpose of this legislation with something like the Human Rights Commission. The Human Rights Commission is there to make decisions after hearing both sides of the case. Therefore, you would assume that whatever rights they have would be dealt with with the sensitivity of that at hand.
This commission is unabashedly for one segment of society. What you're saying is that, in the name of that one part of society, you're going to give them tremendous entry powers into private property, and we think the checks and balances you require here are not adequate.
Mr Winninger: When the advocate tries to gain entry to a private entrance between the hours of 8 am and 8 pm and the owner says, "No, you're not getting into my house," then the advocate has to seek a warrant. Surely that's the check and balance. Then a justice of the peace has to be convinced that a warrant should be issued. What better check can there be?
Mr Sterling: Well, up to this time, if that particular situation had arisen, an advocate might go to the police and say, "I think somebody is being abused there." What would the police have to do in order to gain entrance to that residence? They'd have to get a warrant. So we don't understand the reluctance on the part of the government to require that.
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Mr Winninger: To require what?
Mr Sterling: A warrant.
Mr Winninger: A warrant is required if the private owner says the advocate cannot enter.
Mr Sterling: For a private residence.
Mr Winninger: Yes, right.
Mr Sterling: But not for a private room in a nursing home.
Mr Winninger: I think in the nursing home the earlier provision kicks in where you can gain -- maybe we can hear from counsel on this -- entry to the communal facility but not to the private rooms.
Mr Malkowski: Just to respond to some of the concerns and debate that has gone on, we have heard from constitutional lawyers. They've given us advice, and they have in fact considered the case you have cited. Referring to their opinion, they have said that in fact the current amendment as it stands would withstand a charter challenge. Therefore, I feel we are ready to vote. I certainly am ready to vote on this issue.
The Chair: Further discussion? Seeing no further discussion on the Liberal motion alternate 1, section 17, all those in favour? Opposed?
Motion negatived.
The Chair: Liberal motion alternate 2, subsection 17(2).
Mrs Sullivan: This amendment would ensure that the right of the advocate to enter a facility without a warrant would, as it does with a controlled-access residence, apply only to the common areas of that facility including entryway, hallways, elevators and stairs, and that the advocate could not enter the private dwelling unit or room of the person without the person's consent or without a search warrant in the facility as well as the controlled-access residence.
It seems to me that the same courtesies that would apply to a room, for example, in a nursing home should apply to a room in a hospital. The addition of "facility or" is an important amendment to ensure that advocates, without consent or without warrants, do not have any further right to invade in what is an intensely private situation in a hospital, the specific room, without the concurrence or other protections provided in other sections of the act.
Mr Winninger: I find that a little onerous. I'm just speaking from my own experience where I would go to a hospital room of a patient as a rights adviser paid for by the legal aid plan, and in some cases the patient wanted to see me and in other cases the patient said, "Get lost," and I got lost.
Why would you want to control access between an advocate and someone who may or may not want to see him or her in that way? Why would you want to extend that to an uncontrolled access situation where anyone, theoretically, could go up and visit a patient during visiting hours? I just don't follow your thinking there.
Mrs Sullivan: There is no indication in this bill that the advocate is limited to visiting a patient in a hospital during visiting hours. The advocate can go in at any time, with or without the patient's invitation, in no matter what state of dress or undress the patient may be, in the course of the presentation or involvement in treatment, while the person is having discussions with other health care practitioners.
This is ludicrous. You simply cannot have a wide-open option to allow someone who has never met that person to move without invitation and without other authorization into the private room of a hospital. You don't even want your brothers and sisters and mother and father doing that, or husband or wife.
Why should an advocate have any additional rights to intrude in that way on a person? It's nonsense not to include "facility" in that section. Let the advocate go to the common area and the advocate can let people know that he or she is there. Give them the right to go to the common area, but don't give them the right to intrude into the private room where care is being given and where the person is sick or he wouldn't be there in the first place.
Mr Malkowski: The government will not support this motion. It's important to emphasize that respect is one of the first purposes of the whole Advocacy Act. The advocate in fact may need to meet with a resident or patient who is confined to a room, or where it is the most private place to meet. If a vulnerable person, however, wants the advocate to leave, the advocate must do so.
In an institution the advocate would in fact be required to do this. Entrance into a hospital room is allowed for cleaning staff, for people who are providing food to that individual and a variety of other people. I think we've discussed this to the point that we should vote on it.
Mr Jim Wilson: I was wondering if we could seek unanimous consent to continue with Bill 74 tomorrow afternoon, agreement to proceed with Bill 108 in the morning while Mr Sterling is with us, because members realize that Mr Sterling is unable to be here tomorrow afternoon and we have some significant amendments to Bill 108, and to adjourn this debate for the evening. Do we have unanimous consent to reopen Bill 74 tomorrow? It is getting very difficult to concentrate and this is an important section. I think we all want the evening to think about it.
The Chair: Do we have unanimous consent to return to Bill 74 tomorrow afternoon?
Mr Malkowski: Actually, I'd like to recess and caucus for, say, five minutes before we respond.
The Chair: The committee will recess for five minutes.
The committee recessed at 2140.
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The Chair: I call this meeting back to order. Once again I'll ask, do we have unanimous consent to return to Bill 74 tomorrow afternoon?
Interjections: No.
Mr Malkowski: Because of the time allocations and restrictions we have, we feel that we should continue with discussing the amendments through this evening.
The Chair: We don't have unanimous consent. Once again, on the Liberal alternate 2 motion, Ms Sullivan, the subject is subsection 17(2). Further discussion?
Mrs Sullivan: I really take exception to the fact that the parliamentary assistant to the Minister of Citizenship has indicated that he sees the right of entry of an advocate into a hospital room as being akin to being a person employed by the hospital to do certain work for the hospital, including housekeeping duties or delivery duties.
Those people who are employed by the hospital are not allowed to enter the room in certain circumstances. There is no limit on an advocate -- recall that in most cases the advocate will be unknown to the person in that hospital room -- to limit that person's time of entry. The advocate now, under the first section of this section, has to merely present his identification and indicate that he is there and has the authority to be there and has the authority to enter that patient's room.
A physician could be administering an enema; the advocate can come in. There could be medical treatment occurring; the advocate could go in. There could be discussions with family or friends; the advocate could go in. There is nothing that stops an advocate from going in to that private room, without the consent of the person. The consent of the person is a negative consent. The person must say, "You have to get out of here," not, "Please come in."
I think this is an outrageous intrusion on personal privacy. The access to the common areas of the hospital is appropriate. The access, without question, to the individual room where the patient is located is absolutely, totally, 100% inappropriate. The hospital representatives who were here before us objected with enormous strength and passion to this section of the bill. The medical representatives who appeared before us objected to this section of the bill. If there were patients' rights associations before us -- and there weren't, unfortunately -- they too would have objected to this section of the bill.
I cannot imagine a patient who would welcome, within the circumstances of being in a hospital setting and given the way most patients are housed in a hospital, not in private rooms but in semi-private or quadruple-patient rooms, that without any limitation, an advocate can enter that room without the specific invitation of the person who is there. If there is indeed question with respect to harm that will come to that person, there is access and protection for that person through obtaining a search warrant in a latter section.
I think this is really an offensive section. I can't imagine why the government will not move on this. It's extraordinarily intrusive.
Mr Malkowski: To respond to Ms Sullivan's concerns, the important point to remember, though, is that personal privacy will always be respected first and foremost.
Mrs Sullivan: Oh, baloney.
Mr Malkowski: I think we should now move to a vote.
Ms Carter: Just quickly, I'd like to point out that in section 17(1) it does say that the advocate is entitled to enter at any time that is reasonable in the circumstances. It's not a carte blanche just to go barging in at any moment. I think the likelihood of an advocate trying to do it when the person is undergoing treatment or in the middle of the night or something like that is remote. I'd also just like to add that there seems to be a complete absence, in the case that's been presented to us, of any concern about this person whose rights are presumably being infringed upon in some way, or else the question of having an advocate wouldn't have arisen.
Mrs Sullivan: We don't know if the person's rights are being infringed upon. We know that a judgement has been made by an advocate that a person who is under medical care in a hospital is vulnerable, and that determination of vulnerability, the way this act is now worded, gives the advocate the right to enter the private room or the semi-private room in a hospital.
Could I ask the parliamentary assistant to the Minister of Health whether in fact, under the Public Hospitals Act -- I know he's familiar with it -- the hospitals themselves are required to make rules with respect to restriction of access to individual rooms, and if, under the Public Hospitals Act and the regulations, the inclusion of facilities in this section is therefore almost a requirement. I believe that is the case.
Mr Wessenger: I'm not in a position to give you that answer tonight, Ms Sullivan. If you wish, we can try to provide it for you.
Mrs Sullivan: Mr Chairman, I'd like to stand this section down.
The Chair: Do we have unanimous consent to stand this section down?
Interjections: No.
The Chair: We don't have unanimous consent.
Mr Malkowski: No, we don't. I think we should go with the vote.
Mrs Sullivan: I would like to ask the government then to explain its policy intention with respect to the insistence that an advocate should have a right to enter a room in a hospital where a patient is receiving medical treatment, as is allowed in this section of the bill. Why do they want that in? What is the policy intention that they're attempting to accomplish here? Who was consulted?
Ms Valentine: Simply from a policy standpoint, there are thousands of people who are hospitalized in nursing homes and in a variety of other settings in Ontario. Ontario has one of the highest rates of institutionalization of elderly people in the world. Over 50% of people in provincial psychiatric hospitals have been there for over five years. There are numerous people who are in situations they are not conveniently able to leave, or if at all, able to leave their bed, let alone their room, without great difficulty, perhaps with somebody lifting them out into a chair for a while.
I think Mrs Carter pointed out the phrase "at any time that is reasonable in the circumstances," combined with the primary premises of the bill: respect for disabled persons, the dignity of disabled persons etc. I think it really all needs to be read in context. There is certainly not the intent to intrude upon the privacy of anyone, but the intent is to be able to provide advocacy to people where they are, wherever they need it.
Mrs Sullivan: The policy adviser has talked about people who are living on a permanent or semipermanent basis in many different kinds of institutions, including nursing homes. Our understanding is that a nursing home would be considered a controlled-access residence.
This bill provides the right of an advocate to enter the controlled-access residence, only the common areas of that residence, and does not allow the advocate to enter the private dwelling unit, which may be a room, which may be an apartment, depending on the nature of the home, without the consent of the person, or if there is authorization under subsequent sections 18 and 19, one of them being with a warrant.
We are asking for that same protection for the person who is in a hospital that is offered to a person who is in a controlled-access residence. We do not see the difference in the treatment of people who are in a facility vis-à-vis those who are in a controlled-access residence. We want the same protections: that there should be consent and that other protections that are provided by latter sections of the act will also apply to facilities as they are described under this act.
The Chair: Response from counsel.
Ms Perlis: "Facility" is defined in this act in section 2 as, "A facility governed or funded under an act mentioned in the schedule." The schedule in fact lists the Nursing Homes Act and the Homes for the Aged and Rest Homes Act. So in fact nursing homes, whether funded municipally and not for profit or regulated under the Nursing Homes Act, would be facilities for the purposes of these sections, not controlled-access residences.
Mrs Sullivan: That makes it even worse. I'm going to ask again that this area be stood down. That makes it even worse. In fact, there may well be a charter argument in this section specifically.
The Chair: Do we have unanimous consent to stand this section down?
Interjections: No.
Mr Malkowski: No, we don't. I think we are ready to vote. I'm certainly ready to vote on this issue.
The Chair: I'm sure we're all ready to vote, but is there further discussion?
Mrs Sullivan: I suppose we can talk about this for an awfully long time. We've had, as you know, interventions before the committee in relationship to this section that described the very nature and importance of this kind of amendment being put forward.
We've had representation from nursing homes, from doctors, from nurses and from hospitals saying that the kind of intrusion that's envisaged in this section of the act is unwarranted, unhelpful, unnecessary and indeed could itself be problematic in terms of the other right that has to be balanced, and that's the right to appropriate health care, and an additional right, the right to privacy.
I still haven't heard what I asked for from the government earlier, which is the public policy purpose of this section of the act. I think we're entitled to that. When enormous personal rights are being challenged and interfered with by the inclusion of this section of the act, I would like to know what the public policy purpose of its inclusion is.
The Chair: Perhaps in the best interests of all committee members we'll recess for 10 minutes.
The committee recessed at 2202.
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The Chair: I call this meeting back to order. Mrs Sullivan still has the floor.
Mrs Sullivan: Thank you. I know there are other members of the government who want to speak to my particular amendment. I am, as you are clear, adamant about the principles and the practicality included in the amendment I put forward and, as I've indicated, I'd like once again to hear what the public policy purpose is for not including facility in that section.
Mr Morrow: I haven't talked much today so I'll keep it as brief as I can. Mrs Sullivan, you're right, there is an awful lot to discuss on this. With your indulgence I would ask for your consent that we return to this tomorrow afternoon at 2 o'clock and that we adjourn the committee.
The Chair: Do we have unanimous consent? Agreed. This committee stands adjourned until 10 o'clock tomorrow morning.
The committee adjourned at 2230.