CONSENT TO TREATMENT ACT, 1992 / LOI DE 1992 SUR LE CONSENTEMENT AU TRAITEMENT
CONTENTS
Monday 14 September 1992
Consent to Treatment 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:
*Miclash, Frank (Kenora L) for Mr Mahoney
*Sterling, Norman W. (Carleton PC) for Mr Harnick
*Sullivan, Barbara (Halton Centre L) for Mr Chiarelli
*Sutherland, Kimble (Oxford ND) for Ms Akande
*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
Sharpe, Gilbert, director, legal services branch, Ministry of Health
Wessenger, Paul, parliamentary assistant to the Minister of Health
Clerk / Greffière: Freedman, Lisa
Staff / Personnel: Beecroft, Doug, legislative counsel
The committee met at 1103 in room 151.
CONSENT TO TREATMENT ACT, 1992 / LOI DE 1992 SUR LE CONSENTEMENT AU TRAITEMENT
Consideration of Bill 109, An Act respecting Consent to Treatment / Loi concernant le consentement au traitement.
The Chair (Mr Mike Cooper): I'd like to call this meeting of the standing committee on administration of justice to order. We will be continuing with clause-by-clause on the advocacy package.
Mrs Barbara Sullivan (Halton Centre): Before we move to Bill 109, I want to raise another issue. With respect to Bill 74, as you know, the parliamentary assistant to the Minister of Citizenship basically invoked closure while we were considering Bill 74. While the committee was approximately halfway through consideration of that bill, debate was cut off. Certainly the members of the committee on this side were willing to sit in the evening to approach the bill further. The government members, through the parliamentary assistant, indicated that they no longer wanted any further consideration of that bill. We were told subsequently that some of the government members were tired and that this was one of the reasons for not proceeding.
It was very clear, I think, from our reaction, from the reaction of the Liberal Party and the Conservative Party, that we were very angry with the cutoff of debate. We feel that the bill is an important one, that the implications for Ontario society are going to be extensive and that there are problems with that bill. We wanted those problems aired and we wanted an opportunity to present a point of view that was different.
What we are left with now is a process whereby, with whatever amendments are put forward, there will be a simple vote, yea or nay, and without discussion, in my view every single amendment that's put forward by the opposition will be defeated, no matter what its merit and no matter how much people in the province would benefit by those amendments.
Subsequent to the closure motion by the parliamentary assistant for Citizenship, the parliamentary assistant to the Solicitor General came quietly to me and, I believe, to the third party and asked if we would be willing to sit this evening and tomorrow evening to do additional work on Bill 74. We indicated that we would like to hear a more formal proposal. I really believe that if the government intends to reopen Bill 74, so that we have an opportunity to speak to it, it would be an appropriate thing to do. I would like to know how serious the government is in terms of reopening Bill 74 and sitting on that bill tonight.
Mr David Winninger (London South): Perhaps I could speak briefly in response. Notwithstanding the fact that we debated Bill 74 for two full days and notwithstanding the fact that we were prepared to sit late on the Tuesday night in the last week of clause-by-clause to continue debating Bill 74, but we were somewhat stymied on the government's side from doing that, I did indicate to Ms Sullivan that if there was time left over after we debated Bill 109 and Bill 110, we'd be disposed to come back and participate in further debate on Bill 74.
Mr Wessenger of course has carriage of Bill 109 and he may state his wishes, but it would be our proposal that we sit late tonight dealing with Bill 109 and then continue dealing with Bill 109 until we've completed it, hopefully devote an afternoon -- for example, tomorrow afternoon -- to Bill 110 and then devote time available Wednesday to Bill 74 again. Mr Wessenger may wish to add to what I've just said.
Mr Jim Wilson (Simcoe West): Just to briefly comment on this, I think it's imperative that we look again at Bill 74 because we were closed down by Mr Malkowski in a very abrupt and, I think, rude fashion, with no warning to the opposition parties. Effectively, we were told at 6 o'clock on the last day we were debating Bill 74 that there would be no more debate on Bill 74. I think it's been irresponsible of the government.
If you look at the number of amendments that were stood down and agreed there would be further debate on, and if you look at what has been left for the public to have to deal with if the legislation were to pass without further clause-by-clause review, it's a real mismatch and in fact doesn't make sense in some areas because of the amendments, many of them PC and Liberal amendments, that were stood down and need to be included in that legislation. I think, in terms of responsible government, it's imperative that the government of the day, the NDP, revisit this bill and ask its House leader for more time, if that's required.
Mr Gary Malkowski (York East): Just for the record, I certainly appreciate the Liberal member raising concerns. One point of clarification: Two weeks ago we agreed that we would follow the schedule of 2 until 6 on debate of the bill. That was a point that was agreed to by all parties. However, we were willing in the first place to try to get through Bill 109 and Bill 110 and agreed that if there was time left, we would certainly reconsider opening discussion on Bill 74, should the schedule permit. That's just a point of clarification.
Mr Paul Wessenger (Simcoe Centre): I'd like to add that I would certainly be prepared to cooperate in trying to get Bill 109 through as quickly as possible in order to return to Bill 74. I just want to put that on the record.
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Mrs Sullivan: I find it very interesting that we hear: "If there's time left over, we can go back to 74. We'd like to get rid of Bill 109 as quickly as possible."
Frankly, these responses are simply inadequate. These are extremely important bills. They're extremely important pieces of legislation. They affect every single health practitioner and every single individual in the province and have particular effect on people who are vulnerable or incapable, and we're talking about this entire process as if it's something to get out of the way: "If there's time left over," and, "Let's deal with this as quickly as possible."
By direction of the House, we've been given seven days to deal with four bills. The process has been one where one of the ministries in particular, the Ministry of Citizenship, has been unwilling to discuss the issues associated with that bill. The other two ministries, Health and the Attorney General, have certainly provided additional time with the opposition, and with consumers and practitioners, with respect to discussion.
We don't know what the process will be and what the time lines will be in terms of dealing with Bill 109. It may be fairly simple, but on the other hand, we have some pretty darned important amendments to put forward that will require discussion and debate. We would like to see that discussion and debate occur at a time when we can be assured there is full time to deal with it.
We had agreed there would be two full days for Bill 109. I would like to ensure that we have two full days, today and tomorrow, for Bill 109. We are prepared to sit tonight on Bill 74 and we are prepared to sit tomorrow night on Bill 74.
Bill 110 is also a complicated piece of legislation that ties all these other pieces together. We understand there are a number of government amendments coming forward, most of them out of order, I might add, and we have not seen them. They will affect all the other bills.
What we have now from the government is "if time is left over" and, "Let's deal with this one as quickly as possible." We will have two days in committee of the whole in the Legislature for these bills. I think this is absolutely, frighteningly inadequate.
The Chair: Any further discussion?
Mr Jim Wilson: I too am very concerned about the phrase "if time is left over." I think it's an irresponsible approach to formulating legislation. We gave our commitment from the beginning, as a PC caucus and as members of this committee, that we would be as cooperative as could in trying to put together legislation that we feel the public can live with, even though we feel much of this legislation is unnecessary, wasteful and a wasteful expenditure of taxpayers' money.
"If time is left over" is irresponsible. I'd like to see a further firm commitment from the government that we will be allowed our full two days on Bill 109, our full day on Bill 110, and that we will go to the House leaders -- their House leader, Dave Cooke -- if need be, and ask for a further one or two days that may be required to deal with Bill 74. The government has created the animosity on this committee surrounding Bill 74 and I think it's imperative that it show goodwill and give us some level of comfort that the bill will not be just sloughed off.
Otherwise, we are going to give you one of the hardest rides you've ever seen in committee of the whole House in the Legislature. If you want to do that in front of the whole province on TV, fine, we're quite willing to do that, but I think it would be in your best interest and in the public's interest if we were assured that full time would be given to us to fully discuss Bill 74, the number of amendments that were already stood down and the number of amendments yet to be introduced.
Mr Winninger: I certainly don't appreciate Mr Wilson's threats. On the one hand, he's saying he's trying to be as cooperative as possible, and at the same time he's threatening behaviour in committee of the whole.
Mr Jim Wilson: That's what I'm promising.
Mr Winninger: I can simply restate our position. Two days were allotted to Bill 108. Two days were given for debate. If there's time left over -- I shouldn't say it's entirely up to the opposition, but we can make the time work for us if we want to be constructive about this. If you insist on two full days for Bill 109 and we sit tonight, then there's no reason why we couldn't finish Bill 109 at noon tomorrow and move on with Bill 110. Then we'd have time available on Wednesday.
We're certainly not going to approach the House leaders again and ask them to reopen this. Your House leaders participated in the allocation of time for debate of these bills. I think we've bent over backwards to sit late to get through these bills, and I don't think it's appropriate now, at this late date, to come forward and say, "Go back to your House leaders and ask for more time."
We can make this work; we can find time for Bill 74. But if you insist on your full day for Bill 110, a housekeeping bill essentially, and two full days on Bill 109, then it's clear we won't have time for Bill 74.
Mr Wessenger: I'd just like to make it clear that with respect to Bill 109, certainly we're prepared to sit this evening to whatever hour the opposition would like to continue to proceed with that bill. Also, as I said, I have no objection to evening sittings at all with respect to this matter. I just thought I'd put that on record. In fact I've advised members of the committee that I expect that we would be sitting this evening.
Mr Malkowski: Again, just for the record, it is important to understand that the House leaders did make an agreement on time allocations and that we did limit time to two days per bill. What we have been willing to do is in fact do a bit more than what we agreed. With advocacy, we sat Monday, Tuesday, and we included evening sittings and added the extra time Wednesday afternoon, so in fact we sat more than two days on the Advocacy Act.
The point is that we have been more than willing to make concessions. We are again happy to say, if we can get through Bill 109 and have extra time -- it's important that the opposition members realize that the schedule is something that all three leaders agreed on. It's not something that we had control over. The allocation times were a three-party agreement, and we have held that.
Mrs Sullivan: I want to correct the impression that there was warm and hearty enthusiasm from the opposition parties with respect to this time allocation. In fact, there was not that warm and hearty enthusiasm. We wanted public hearings again after the government brought in 200 amendments to the package of four bills.
In order to get those public hearings, to enable groups and organizations and individuals who had a professional and consumer interest in these bills to have a say with respect to those amendments and to how those bills would work if they were implemented in the form that those amendments were brought forward, we had to agree -- there was an insistence that we agree -- on a compromise that included time allocation.
This is the exact same approach the government took when it brought in the Labour Relations Act and, that very afternoon, changed the rules of the House. In this case, to ensure that we had concurrence that people from the public would be able to comment on these bills, we had to concur with time allocation. It is absolutely outrageous to give any hint that there was enthusiastic agreement for time allocation. This is inadequate time. Anybody in his or her right mind knows that it's inadequate time.
Mr Norman W. Sterling (Carleton): I'm disappointed in the process sort of breaking down at this time. Up to this time, I think that both opposition parties have acted in a responsible manner in trying to bring forward reasonable debate. I don't think that on any particular point the debate has been approaching any kind of filibuster or trying to lengthen it beyond the time when people were legitimately putting forward their arguments with regard to amendments.
We're dealing with some very important and complex legislation. It has been our continued desire to try to resolve the difficulties to come out with the best piece of legislation possible in the end. But ultimately we in the opposition realize that it is the responsibility of the government to have it right. Now if the government insists upon pushing this process faster than it should go, it bears the ultimate responsibility for the mistakes made in constructing this legislation.
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We can argue on both sides to try to make political marks that we are willing to sit here till 10:30 tonight or 9:30 or after dinner or whatever. But there comes a time in every day when the debate becomes fruitless and the progress stops, and usually that happens after we have expended enough energy during the day that we no longer can carry the conversation to a successful conclusion in this forum.
If the government doesn't want to remain flexible with regard to how we carry on and the procedure on this, that'll be tough; it will be tough for us, and it will be tough for the many interest groups which I think have done an excellent job in spending valuable resources and time in putting forward their positions. But I don't think saying we are going to sit here till 12 o'clock tonight and 12 o'clock tomorrow night is going to indicate or produce progress.
I suggest we start off, we carry on as best we can and if the government cuts us off, it's going to be on its neck that hangs an imperfect piece of legislation. In the case of Bill 74 and Bill 109, I think both of those pieces of legislation are badly flawed. But if they don't want any more debate on it, they don't want to hear anything more about it and they don't want to act constructively in this process, I guess they're going to cut us off. It's the public of Ontario, the health care system in particular, that's going to suffer as a result of it.
The Chair: Quite possibly at lunchtime or at dinnertime the subcommittee could get together to determine what kind of hours it would like to sit rather than debating this till whenever this morning. Right now we'll proceed with clause-by-clause on Bill 109, the Consent to Treatment Act. Opening statements?
Mr Wessenger: Before we proceed with the clause-by-clause review of the Consent to Treatment Act, I'd like to make a few comments to the members of the committee on behalf of the Minister of Health. First, I'd like to thank those who have worked so hard and diligently for so long on this legislation, and that's our legal counsel Gilbert Sharpe and also Juta Auksi and Guiseppa Bentavegna, who have given hours and hours of time trying to make this legislation the best possible.
Second, I'd like to thank the committee members from all parties for their cooperation and support in shaping this legislation. I'd also like to thank the many organizations and individuals who appeared before this committee or who sent in presentations. This public process was an important opportunity for interested parties to come forward with their views and ideas on how the legislation might be improved.
I think it's apparent to all of us that Ontario needs legislation that specifically addresses the issue of consent to health treatment, wherever health care is provided, and that we need legislation that applies uniformly and equitably to everyone. In recent years, the need for clear statutory rules on consent to health care has been expressed by health care consumers, providers, experts in the health care field and interest groups.
The issue was raised not only by the Fram report of 1988 but during the amendment process for the Mental Health Act, the discussions on the Public Hospitals Act, which are still under way, and the public meetings on proposed community mental health legislation.
Furthermore, in the June 1991 Ontario Court of Appeal decision in the case of Reid and Gallagher, Mr Justice Robins summarized the principle of informed consent when he wrote the following:
"The fact that serious risks or consequences may result from a refusal of medical treatment does not vitiate the right of medical self-determination. The doctrine of informed consent ensures the freedom of individuals to make choices about their medical care. It is the patient, not the doctor, who ultimately must decide if treatment -- any treatment -- is to be administered."
In Ontario at the present time, no legislation exists that deals comprehensively with the issue of consent to health services. The Consent to Treatment Act, 1992, attempts to codify all the elements in consent to health services in one piece of legislation.
As members will recall, in her remarks to this committee last December, our Minister of Health, Frances Lankin, said she was more than willing to work with this committee and other groups to refine and strengthen the Consent to Treatment Act.
The government and this committee listened closely to the presentations that came before us, and we amended the legislation to accommodate many of the concerns and issues expressed. I believe we now have a bill that meets the needs of health care consumers, health care providers, indeed all those with a stake in the effective operation of our health care system.
Let me highlight just a few of the more important issues that came before the committee and how we dealt with them.
This committee heard concerns that a mandatory advocate visit in each case where a person was determined mentally incapable would cause unjustifiable delays in treatment for incapable persons, and there was confusion about the role of advocates under this bill.
In response, we amended the legislation so that the term "advocate" has been replaced with the term "rights adviser" to clarify that the role of the rights adviser in this legislation is a narrower rights information role and not the broader social advocacy role set out in Bill 74, the Advocacy Act.
We've also limited rights advice to persons who are 12 years of age or older.
In psychiatric facilities, a person who is determined mentally incapable with respect to treatment will be given a notice of rights and a meeting with a rights adviser is mandatory. This continues what is currently in place in psychiatric facilities.
In other settings, a notice of rights will be required only if the treatment is a controlled act as defined under the Regulated Health Professions Act. A meeting with a rights adviser will only take place if the mentally incapable person asks to meet with a rights adviser or objects to the treatment.
We heard concerns expressed about setting a presumption of mental capacity to treatment at age 16. Numerous groups presenting at the hearings expressed the fear that the reference to age 16 would result in adolescents being refused or failing to seek needed health services. The majority of these groups requested that no presumption of mental capacity based on age be set out in the bill. Their preference was to leave the determination of mental capacity to health practitioners who would apply the mental capacity test set out in this legislation.
In response, we amended this legislation so that there is now no reference to age in regard to mental capacity, and I can't emphasize this point strongly enough, because we still see media reports giving misinformation about presumptions of mental capacity and incapacity with a reference age of 16.
We also heard concerns about the original legislation that a mentally incapable or unconscious person could be at risk in not receiving prompt treatment in an emergency. Health practitioners felt that clarification of the original emergency provisions were needed to permit them to conduct an examination of an incapable person to determine if an emergency existed.
In response, we broadened the criteria for administering treatment to a mentally incapable or unconscious person. The current provisions of this bill state that emergency treatment is permitted if the incapable or unconscious person is experiencing severe suffering or is at risk of suffering serious bodily harm if treatment is not administered promptly.
A provision has also been added clarifying that a health practitioner is permitted to examine an incapable person to determine if an emergency exists.
Finally, if a substitute decision-maker, other than a court-appointed guardian, an attorney for personal care or a board-appointed patient representative, is refusing emergency treatment and the health practitioner has reasonable grounds to believe that the substitute decision-maker is not complying with the incapable person's prior wishes and is not acting in the best interests of the incapable person, emergency treatment can be given.
That concludes my comments on the Consent to Treatment Act. As we move into the clause-by-clause review of this bill, I hope the goodwill and cooperation that has characterized our discussions to date will continue. We're all interested in making this the best possible legislation, and I look forward to hearing the comments and suggestions of the committee members during this part of the committee process.
The Chair: Mrs Sullivan, opening statement?
Mrs Sullivan: As you know, my party has for some time agreed with the principle of the codification of the law with respect to consent to treatment to ensure uniformity and equity in application of the principles of informed consent across the province.
I think we have all signed a form to consent to medical treatment at one time or another with respect to either ourselves or our children or parents perhaps in certain situations.
One of the things we know is that there is a great deal more than simply signing a form, that the provision of consent and the form itself is merely evidence of the consent; it's not the entire process of consent.
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We had hoped that through this process, the codification of the consent to treatment provisions would involve a cautious, careful and appropriate discussion. We have found that because of a certain sloppiness on the part of the government -- in fact, a substantial sloppiness on the part of the government, in my view -- the process with respect to Bill 109 has become confused and controversial.
We know that because the bill is presented as part of a package, the Consent to Treatment Act does not stand alone; the interrelationship with Bill 108 on substitute decision-making, with Bill 74 on the Advocacy Act and of course with Bill 110 created substantial controversy and substantial confusion.
The bill became not merely a codification of common law. In fact the inclusion of an extra layer of advocates in the first go-around brought a new dimension of ideology into the proposal of codification of the law. It became very clear that there was suspicion on the part of the government of the care giver and there was suspicion on the part of the government of the institution, and that suspicion was thinly veiled.
One of the problems here was that there was no specific consultation before the introduction of this legislation. I think that's a shame. I think it's also really one of the greatest negatives in association with this presentation.
The last government, as you know, had circulated a paper for discussion with relationship to the principles of consent legislation. An election intervened and the process of consultation with respect to the principles of consent was never completed. This government, when it came to power, simply moved ahead and none of the health care professionals or consumer groups had input into the formulation of the bill, nor indeed into the discussion of the principles that should have been behind the bill.
The minister apparently didn't seem to be interested. But for one session in committee, she has not attended the public hearings and has apparently not been attentive to the critical issues that were being aired. While changes were made, and many of them were welcome changes, they were only made when it became clear that doctors, by example, couldn't even make an appropriate diagnosis or deal with any sort of emergency as the bill was first written.
There's no question in my mind that ministry officials understood that the legislation couldn't proceed in that form. The opposition certainly understood that the legislation couldn't proceed in that form. Health care providers and every single health care organization that appeared before the committee understood that the legislation couldn't proceed in that form. In order to provide medical services, the law would have to be broken. It was as simple as that.
Even with the changes that have been made to the bill, the bill still isn't right. I will be presenting a number of amendments that I hope will correct some of its greater deficiencies. I've discussed those amendments with officials in the ministry, with health care providers and with the minister herself. I am hopeful that the government will accept them and that we'll end up with a law that's principled and that's practical.
There are two things that I want to raise additionally as points of regret. We asked in committee for a statement with respect to the age issue, and common law with respect to age. We received that late, but it was a well-prepared document and I think we're all grateful for it. In the course of reading that document, however, it became apparent to me that the Weisstub report is available in draft form. Indeed, in the document there are quotes from the draft Weisstub report.
I've indicated on a number of occasions that I'm concerned that the research provisions of this bill in fact do not adequately explore the issues associated with the ethical treatment and equitable treatment of research, given that there is a surround of discussion that should be taking place here.
At the beginning of the committee we understood, and we were told in fact in committee, that the Weisstub report would be available for us to include in our consideration. I'm disturbed that it's not, and I believe that in fact there is a gap in this bill and that we'll have to, within relatively short notice, as soon as the final report is finally made public, return to that.
I will be making amendments, as I've indicated, that will separate the rights advisers from the Advocacy Commission and bring them under the full purview of this act separately. I will be moving mandatory rights advice and putting the patient in the position of being able to request rights advice and having information and official notification about the right to appeal.
I will be presenting amendments with respect to the diagnostic procedures so that a physician in making a diagnosis will not have to receive consent for the diagnosis. I will be making recommendations based on those that have been put forward to us suggesting that the health practitioner can act on reasonable grounds and in good faith, without negligence, and I will be making recommendations with respect to providing rights notice to those people who are 16 years and older.
There is no question that this is important legislation. We feel very strongly that it has to be right, that it has to be able to work not only for the patient but for the health practitioner and for the institutions which will be responsible for using it.
We also are very concerned about the implementation of the bill. Our concerns were aptly summed up by the ad hoc committee which has indicated that it wants ongoing and further consultation as the regulations are devised and as the processes are put together. Without that kind of consultation, this bill will definitely not work.
Mr Jim Wilson: I want to begin by once again expressing my displeasure and concern that the Minister of Health has not once had the courtesy or the respect for members of this committee or for this committee as a whole to appear before the committee to help out the process. The process would be greatly enhanced if the minister were to at least show the courtesy of appearing here.
As Mr Wessenger indicated in his opening remarks, what has happened is that the government feels there is misinformation and misinformed media reports out there. Why hasn't the Minister of Health made any attempt whatsoever to appear before this committee during clause-by-clause to try to clear up some of that confusion? It's in her and the government's best interests to bring the full weight of her office to this process. The position she holds is not that of parliamentary assistant; it is that of minister.
What we're very much concerned about in particular with Bill 109 is that, in spite of our efforts to work with the government, we still believe there is an underlying suspicion in this legislation that this government does not trust health care practitioners or care givers; it's riddled throughout the legislation. There's indeed a mistrust of the people who are in fact entrusted by the public and are licensed under the Regulated Health Professions Act to administer treatment to people in need of medical treatment in our society.
The government, in all of its dealings with the medical profession in particular, has sent out a dangerous message to the public, indicating that it doesn't trust doctors to do their jobs. That's abhorrent and we're going to work the best we can to gut provisions in this legislation that send out those messages to the public.
We think Bill 109 loses sight of the primary responsibility of health care providers and care givers, and that's the right of the patients to quality, effective and timely treatment for their ailments. What we see in Bill 109 is really a primacy of the right to informed consent over that of the right to treatment. We will be working very hard to try to bring back a balance to this legislation and in fact to try to get as much of the status quo as possible into this legislation because we trust health care professionals. I know the Liberal members agree with us in that approach.
To emphasize the fact that the legislation places the act of informed consent in principle above all else, I want to quote from a press release of last Friday that was issued by the College of Physicians and Surgeons of Ontario. I can think of no higher body, no higher authority than the CPSO because it is its members, it is the physicians in their offices, in the mental health facilities and in the hospitals who have to make this legislation work when we wash our hands of it. Once this legislation is enacted, it's up to the medical community primarily to make it work.
I want to quote where it starts, where the CPSO, the College of Physicians and Surgeons of Ontario, warns that:
"The bureaucratic complexities of the consent to treatment legislation will force health care workers to observe technical compliance above all else. If the government wants to ensure that the interests of vulnerable or incapable people do not get lost in legalisms, then it must allow health care practitioners, whether nurses, midwives or doctors, to act in accordance with the judgement they are trained to deliver."
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I don't think any member of this committee could have summed it up better that the underlying principle in this legislation, although it's masked in wonderful social democratic language and language of empowerment -- what I see in this legislation -- is a fundamental mistrust of our health care practitioners and health care providers.
We want to ensure, Mr Chairman, that the status quo is maintained in the treatment of persons under the age of 16. We do not think formalizing the consent process for persons under the age of 16, as this legislation attempts to do, does anything to help improve the provision of health care for these individuals, so we'll be introducing amendments along that line.
We want to ensure that the legislation makes it easier for families to obtain the necessary treatment for their mentally ill relatives. We've had a tremendous amount of compelling testimony during the public hearings on this legislation that families have been left out. We saw that in Bill 74 in the advocacy legislation and in Bill 108, and it is evident also in Bill 109. We haven't been able to rout it out to the extent that I think is necessary.
Again the emphasis seems to be on the rights of the mentally ill person rather than the primary concern, which should be the right to effective and quality treatment. We want to ensure that the role of the rights advisers is clarified in this legislation. There is confusion out there as to what the role of the rights advisers will be. In fact I'll go so far as to say we want to limit the role of rights advisers. We want to ensure that rights advisers are not an unnecessary bureaucratic mess for health practitioners to deal with.
People expect -- I know my constituents expect -- when they walk through the doors of the emergency room in their hospital that they go there for treatment, not rights advice. We want to work very hard to ensure that the emergency provisions in this legislation are again amended to reflect a commonsense approach to providing effective medical treatment in cases of emergency.
I think this legislation must not be allowed to circumvent any of the safeguards that are currently present in dealing with children and youths, those safeguards that now exist in the Child and Family Services Act. We'll be ensuring that this is the case and we'll be looking for the cooperation of the government in those areas.
Mr Chairman, just to sum up, I want to make it absolutely clear that we trust our health care practitioners. If the government doesn't do that, then the minister should appear here herself and tell us why it doesn't trust health care practitioners. If you want to clear the air, the minister should be here. We've not seen her at all during clause-by-clause hearings, and she'll be left to defend this, having not participated in the hearings, during the committee of the whole debate in the House. I think that will indeed be an interesting time.
I know Ms Lankin will be well briefed, but will she be fully aware of the tremendous concerns that have been expressed to this committee? These concerns, once again, as late as last Friday were expressed by the College of Physicians and Surgeons of Ontario, the leading authority in dealing with Bill 109. We should listen to the CPSO and to those other health care practitioners and groups that have expressed concerns and the need for even more amendments to this legislation. We will be doing our best to introduce those amendments on behalf of those groups, to work with our other opposition colleagues and to try to solicit the support of the government members.
Mr Wessenger ended his remarks by talking about the cooperation and goodwill that has existed to date. I suggest somebody in the Ministry of Health wrote those remarks without appearing before this committee, again reflecting that if that's the opinion of the minister, then I would say she's missed the gist of what's going on around here. We had goodwill and cooperation until we were shut down on Bill 74 and we had goodwill and cooperation until a number of amendments that we felt were badly needed had not been passed. Indeed, in some cases they've been set aside and we've been told that we may not have time to go back and revisit those.
I would ask the government members to convey to their respective ministers that all is not rosy on this committee, that if they have that impression they're misinformed. If the media give the impression that all is not well at this committee to the public, then I would have to agree with it. I would not, like Mr Wessenger, try to cover it up by saying the media is misinformed. I don't think that's the case at all. I think the ministers are misinformed.
The Chair: Thank you, Mr Wilson. For the committee's information a letter has been distributed regarding the recommendations of the official guardian concerning guardianship and advocacy legislation and age of consent. You have it at your places.
We'll now start in to clause-by-clause consideration. The first one is on the government reprint. We have a deletion in subsection 1(1). Discussion, comments? Seeing none, all those in favour? Agreed.
We have a PC motion next.
Mr Jim Wilson moves that subsection 1(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following definitions:
"`plan of care' includes a plan that outlines an individual's day to day personal care, social, spiritual and recreational activities and that has been consented to by the individual or by a person authorized to consent on the individual's behalf;
"`plan of treatment' includes a plan that involves the administration by a health practitioner of a prescribed procedure that is invasive or that does not occur on a regular basis."
Mr Jim Wilson: I think the definitions are self-explanatory. We're simply trying to clarify this area of the act. We had a number of witnesses appear suggesting, and I think they're very commonsense and good suggestions, that a plan of care be included so that, for instance, patients or clients in nursing homes will not have to be disturbed through the invocation of the rights advisory process each and every time one of their day-to-day health care treatment activities is carried out. It makes sense to accept these amendments, and I would look for all members' support on this.
Mr Wessenger: We'll be opposing this amendment. The plan of treatment is already included in the definition of treatment and the definitions, if they were added into this legislation, I think would create a great deal of confusion at this stage and would cause many other drafting requirements. It would not be beneficial, and I don't think it's necessary to define every word in the bill.
Mr Sterling: Am I hearing the parliamentary assistant correctly, that because we have to amend other parts of the bill, that's his major objection to this?
Mr Wessenger: There are some other objections and the whole question of plan of care items are --
Mr Sterling: I think it's more important than the hard task of amending the other parts of the bill. What are your objections?
Mr Wessenger: We don't feel that it adds anything to the bill; it detracts from the overall legislation. Under plan of care we have items included that really have nothing to do with health care, such as social, spiritual and recreational activities. They have absolutely nothing to do with health care. They may relate to the health of the individual but they certainly do not relate to consent to treatment.
Mr Jim Wilson: The Ministry of Health must be using a different definition of health care than the one I've become familiar with. It would seem to me the day-to-day personal care, social, spiritual and recreational activities that are carried out in a facility are very often part of the plan of care of an individual patient.
I suggest to Mr Wessenger that there will be a lot of groups and a lot of citizens of Ontario who would disagree with his definition of health care. The fact that more work may have to be done to wording in other parts of the legislation to conform to these definitions is a pretty lame excuse and in fact we've done a lot of that work for you, Mr Wessenger. We've introduced amendments to help the act conform to these new definitions.
Mr Wessenger: I'd just like to add that we're dealing with treatment under this act, not the question of health care.
Mr Sterling: The whole purpose of this amendment is to try to get out of the treatment section, particularly for long-term health care areas, those things we would not deem as invasive or so much associated with something that would be normally deemed as questionable even in the public's mind; for instance, cleanliness and personal care of the individual. I guess we're trying to make certain that those parts of what some people might deem health care in fact aren't part of treatment under this act. I think that's really where we're driving with this particular amendment.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the PC motion on subsection 1(1)? Opposed?
Motion negatived.
The Chair: In the government reprint, clauses 1(1)(a) to (a.13). Discussion? Carried? Agreed.
Since it is close to 12 noon and we're going on to rights adviser -- I imagine it's going to be a fairly lengthy discussion as there are five amendments to it -- possibly we could recess now until 2 o'clock this afternoon. This committee stands recessed.
The committee recessed at 1153.
AFTERNOON SITTING
The committee resumed at 1421.
The Chair: I'd like to call this meeting back to order.
Mr Winninger: I was going to ask whether we could have unanimous consent to a late substitution of Ms Akande at 4 pm by Mr Sutherland, whether the opposition parties would consent to that substitution.
The Chair: Do we have unanimous consent?
Mrs Sullivan: We understand that the government wants a full contingent of its members here. What we're concerned about is that once again there's evidence of the clear sloppiness in its approach to this committee work. They hadn't made any arrangements for substitution as is appropriate, and a well-managed caucus would have done so. It just seems to me that once again it is sheer negligence of duty.
We have asked that the government also accept its responsibility by returning to Bill 74 this evening. We've indicated that we are prepared to sit tomorrow evening. We have intransigence once again from the government, which believes that Bill 109 can be swept aside, dealt with quickly. We heard this morning that this is its attitude.
As far as I'm concerned, we will accept that Mrs Akande can have another substitution. We think the government should pay more attention to its responsibilities, not only in the legislative area but in the process of parliamentary conduct as well.
Mr Winninger: I'm pleased that I hear some consent from Ms Sullivan, but I'm sure she would acknowledge that in her party as well as ours emergencies do come up in scheduling and sometimes it's necessary to substitute.
The Chair: Thank you. Once again, do we have unanimous consent? Agreed.
Now, as for broadcasting and Hansard, they have to know, and the dining room will have to know, whether or not we're sitting late this evening. Do we have any agreement on what we're doing this evening?
Mr Winninger: It would be the government's position that we would like to sit and debate Bill 109 until 9 pm with an appropriate break for dinner.
The Chair: Any discussion?
Mrs Sullivan: Our position is quite clear. We've had a day and a half of debate during the daytime on Bill 74 and we sat one evening, not two, as one of the government members indicated. We would like to go back to 74 tonight. We want the full two days for Bill 109, being today and tomorrow. That's our position.
Mr Winninger: I feel I have to correct for the record a statement that Ms Sullivan just made that we had a day and a half of debate on Bill 74. That's not the case. If you take the evenings we met and the Wednesday afternoon we met to deal with Bill 74, we have a total of over two days of debate on Bill 74.
Mrs Sullivan: And it's not enough.
Mr Winninger: I believe I still have the floor. I need not remind Ms Sullivan yet again that that's pursuant to the agreement of all three House leaders.
The Chair: Do we have consensus on this evening?
Mr Jim Wilson: I would just as soon work right through dinner and have some sandwiches brought in, because the sooner we get this done, the better. There's no use breaking for two hours or something and then having to come back. A lot of us have things to do in the evening, like phoning our constituents back who have phoned us all day.
Mr Malkowski: Just a point of clarification: We're talking about whether or not we're agreeing to sit until 9 tonight to discuss Bill 109. Is that correct?
The Chair: I haven't received any clear indication of what we're meeting on this evening. It seems everybody wants to meet this evening; it's just not clear what we're meeting on.
Mrs Sullivan: I would like to make a motion that the committee sit this evening to consider Bill 74.
The Chair: Mrs Sullivan moves that we sit this evening to consider Bill 74.
Mr Winninger: We'll be opposing that motion.
Mrs Sullivan: Could we have the reason?
Mr Winninger: I think it's been made clear over and over again that two days were allocated to the debate of Bill 74. We have other legislation to debate over this and the next two days. It may to some extent be the opposition's prerogative how it chooses to deal with those three days, but the government has indicated a willingness, once debate has been concluded on Bill 108 and Bill 109, to come back and discuss any outstanding issues on Bill 74. That's the position that was communicated in good faith to Ms Sullivan in the last week of clause-by-clause.
Mr Sterling: We really don't care which we deal with tonight. It doesn't matter to us. We'd just like to get on with whatever we're doing. Let's go.
The Chair: Further comments? Seeing no further comments, all those in favour of Mrs Sullivan's motion? Opposed?
Motion negatived.
Mr Winninger: I would move that we adopt the suggestion of Mr Wilson that we have a working dinner. Whether we sit until 8 or 9 tonight requires, I guess, some agreement from the other opposition members.
Mr Sterling: Let's just continue on until we feel that we're running up against a wall and that we're not getting anywhere -- I think everybody recognizes that in the committee -- and then quit when that happens.
Mr Winninger: It was understood that the broadcast booth and translators and so on need to have some indication of how late we were sitting today.
Mr Jim Wilson: When we know, we'll tell them.
The Chair: It seems we do have consensus that we will be working through dinner and into this evening.
Mr Sterling: Let's say we won't go past 9 o'clock, for their purposes, and to respect their lives as well in terms of their schedule and that kind of thing.
The Chair: Do we have consensus on that? Agreed.
Can we continue where we left off? Liberal motion, Mrs Sullivan.
Mrs Sullivan moves that the definition of "rights adviser" in subsection 1(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"`rights adviser' means,
"a person who is a member of a prescribed category of persons authorized to give rights advice in prescribed circumstances."
Mrs Sullivan: This recommendation and this amendment take out what is clause (a) of the current proposal for amending the definition of "rights adviser" and would limit the rights advisers to those people who are authorized under the Consent to Treatment Act as a prescribed category of persons, so that the package in terms of the Consent to Treatment Act is a standalone package. We believe it is the appropriate way to go. Practitioners and consumers who have expressed an interest in this area support this amendment and we believe the government should support it as well.
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Mr Wessenger: We'll be opposing this amendment. I think, first of all, the present definition does provide the option for having a standalone because a "rights adviser" is defined as either "a person who is authorized under the Advocacy Act" or "in the prescribed circumstances, a person who is a member of a prescribed category." So it provides the flexibility of either doing it all under the Advocacy Act, doing it under the Advocacy Act and having other persons deliver or having an evolutionary model. It gives it a great deal of flexibility.
I think there are some concerns about establishing rights advisers to have a body to which rights advisers are responsible, and certainly the Advocacy Commission provides that body for training and responsibility of rights advisers. For that reason, we'll be opposing the amendment.
Mr Sterling: I don't quite understand why one group of rights advisers, ie, those advocates under the Advocacy Act, would be given supremacy over other rights advisers. There are four amendments in regard to this particular section. One of ours just says that it will be anybody who is prescribed in the regulations, and therefore if it was the wish of the government of the day to include advocates under the Advocacy Act, they'd be included; if it was the wish of the government of the day that other people would be included, they would be included.
I don't understand why there's a special category (a) under this act. Why wouldn't you just say a rights adviser is anybody who's prescribed? Can you tell us who you have in mind as rights advisers?
Mr Wessenger: Yes. I think we might have the policy person, Juta Auksi, answer that question.
Ms Juta Auksi: I think there are a couple of issues here. One of the things of course is that in the Advocacy Act there is a requirement that they are to do this if they are mandated by the Ministry of Health to do it. Without that provision, just putting it in the regulations, there might be some question as to whether the Advocacy Commission would have to agree to do it.
From a practical point of view, I can say, from having been very closely involved with the establishment of the existing rights advice program that operates in the psychiatric facilities, that it's extremely important for rights advisers to have a coordinating body.
The part of the program that presently operates in the provincial psychiatric facilities is much more effective in a lot of ways, I would think, than the part that operates with duty counsel in the non-government psychiatric facilities, not because duty counsel would be unable to perform the task, but of course they do that along with many other things, don't have special training beyond a very limited amount to do the job, and it just simply isn't possible to impose the same kind of requirements on people who are doing this in a way that isn't coordinated, where there isn't a really extensive amount of training or supervision of them.
It certainly doesn't need a lawyer to do it, as many people have pointed out about the existing program. The point is that the Advocacy Commission would be able to actually create a program province-wide, tailor administratively the rights advisers working in various areas, the types of facilities and so on, according to what the need was in a given place. If you didn't need many rights advisers in a certain area, it could arrange for a program delivery that would suit that and still ensure training. That's the problem: If it wasn't mandatory that the Advocacy Commission take up that responsibility if asked to do so, it would create a problem of having to create a standalone program to do it.
Mr Sterling: I find the reasoning very difficult to follow, to be kind. The reason that it's included, I am told, is that if the Advocacy Commission were asked to do this under a prescribed regulation, the commission might refuse. Who are we kidding? From where does the commission get its money to operate? How on earth can anyone argue that the Advocacy Commission, which is receiving its money from the taxpayers of Ontario, if asked under a regulation as decided by the cabinet of Ontario to help out people under Bill 109, would refuse? That argument I have to reject in toto.
I just find the idea of tying the hands of the government to the Advocacy Commission silly. Why would you, if you discovered that the Advocacy Commission were unable to provide the kind of rights advice which was working for vulnerable people or for anybody else under Bill 109, tie your hands to it? What would happen if the Advocacy Commission was not able to operate properly for a period of time for whatever reasons? I would hope the government would react in another way. It might want to create another kind of commission or another kind of group to provide this rights advice.
All I'm saying is that it makes more sense to me to deal with this in as flexible a way as possible. I would only hope that the government would be able to provide this committee now with whom it is going to prescribe as rights advisers. I haven't heard that yet. Here we are, passing a piece of legislation that's supposed to become law hopefully in the next -- well, I don't know how long. We haven't heard anything, because we haven't had the minister in front of us to tell us when this is going to become law, but presumably it's going to become law within a year or two. Who are going to be the rights advisers? I haven't been told that yet, and we're being asked to pass this section.
Notwithstanding that, I think the idea of including one group to the exclusion of others is wrong. I would think that the group we would historically trust most to give rights advice in this province would be lawyers, who are controlled by the Law Society of Upper Canada. They have been trained with regard to giving rights advice on issues more than anybody else in this province. If you were trying to do it in terms of primacy of qualification you would say, "I guess the lawyers trained in rights and obligations would be the first group we would put in," and then you would add on to that at a later time. That's why in one of my amendments I say, "The lawyers plus any other prescribed group."
I'm also concerned, quite frankly, with the smaller communities that are not going to be adequately taken care of by the Advocacy Commission. I have mentioned that before in previous arguments. Therefore, I want to include the lawyers to make certain that people who needed rights advice in that area in a quick and timely way would get it. I wasn't going to entrust the government to exclude the lawyers out of that group, because at least I am confident in that group of, I believe there are now, in the neighbourhood of 20,000 lawyers across the province, that you would be able to find one in an emergency, that you would be able to get one to give rights advice if it was needed.
The argument too, I want to say, from the policy person from Health about lawyers not having adequate training with regard to giving advice in this area is not a fault of the lawyers; it's a fault of the present government and previous governments in not bringing together an educational program to say to the law society, "Provide a specialization in this area." Lawyers can be specialized in criminal law or any other area of law they want, and there's nothing to prevent the law society from creating a specialty with regard to giving this kind of advice for people across Ontario.
All I'm saying is that the premise you start from in terms of rights advisers is totally wrong. It should be starting from those who we have, over a history of time, learned to go to for rights advice, and then everybody else should be prescribed in.
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Mrs Sullivan: I have problems also with the argumentation put forward by the policy adviser to the ministry. It seems to me that the Minister of Health and the government of the day do have the authority, with this amendment, to call on the Advocacy Commission to provide, from time to time, advocates who are trained in providing rights advice. It also would provide the authority to call on people such as chaplains in certain facilities, to call on lawyers in certain areas, to call on social workers in other areas, as the case may be. The flexibility is clearly there as a result of this amendment, so I reject the view that the flexibility is not provided with this amendment being there.
I'd also like to point out that one of the interesting points, although some people don't like it, about the psychiatric patients' advocacy operations is that in fact they are not statutory. They are basically a programmatic scheme of the Ministry of Health and their work has been useful work. It was not necessary for them to have a separate surround of the Advocacy Commission. If the ministry and minister found it necessary, a similar surround could be made for rights advice. This amendment takes all those scenarios into account and has the additional positive attribute of containing the rights advisers in health care situations to the Consent to Treatment Act. The minister then has the freedom to operate beyond that.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the Liberal motion on subsection 1(1)? Opposed?
Motion negatived.
The Chair: Liberal motion alternate 2 on subsection 1(1).
Mrs Sullivan moves that the definition of "rights adviser" in subsection 1(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out, and the following substituted:
"`rights adviser' means a person who
"(i) is a member of a prescribed category of persons who are authorized to give rights advice in prescribed circumstances, and
"(ii) is not employed by an organization that provides housing, vocational or health care services."
Mrs Sullivan: This motion is put forward, one, to reiterate the arguments I previously put about the rights adviser being limited and in the surround of the Consent to Treatment Act in the first case. I also believe, frankly, that this is the understanding the minister and ministry officials gave to health care agencies in discussions with them before this bill came to the floor in its amended form.
But secondly, I want clarification from the government with respect to subclause (ii) of this amendment. We have heard a lot of rhetoric with respect to the independence and the necessity of independence of the rights adviser or advocate from the institution in which that advice is put forward. We have had conflicting information about who the rights advisers will be and who will be responsible for paying for them. This amendment is put forward to obtain clarification and a clear statement from the government of what its intentions are.
Hospitals want to know if they are going to be required to have a full-fledged staff complement of rights advisers, either new people who are brought on staff or people whose jobs will have an alternative form of duty, and other organizations in the health care field similarly want that advice. Nursing homes want to know if under their current mandate there is going to be an additional mandate of making rights advice available. The government has not made itself clear. We want that clarification and we want it today.
Mr Jim Wilson: While I appreciate what Mrs Sullivan is trying to do with this amendment, we will not be supporting it. Subclause (ii) of the amendment, the way I read it, would effectively prevent health care providers and regulated health care practitioners from providing rights advice. I think that in rural areas of the province and areas that Mr Sterling said earlier in his comments that won't have an army of rights advisers readily available, it's vitally important that health care practitioners be able to carry on the status quo because we trust health care practitioners.
Mr Wessenger: We'll be opposing this amendment as well, for some of the reasons expressed by Mr Wilson. The fact is that we have to live in the world of what is practical as distinct from what is ideal and it's important this flexibility be in the act to not restrict.
Mrs Sullivan: I'd like to ask Mr Wessenger if the response he gave us last week when we were sitting with respect to the independence of the rights adviser still holds or has there been a change of mind with respect to the opinion he provided us last week?
Mr Wessenger: If I could clarify that, I think from an ideal point of view the independence of rights advisers is desirable, but I think that has to be tempered by the realities of providing the service. I think that's when we have to have the flexibility to combine those two considerations.
Mrs Sullivan: Your clarification then means that while rights advisers may be independent of an organization, you will also expect in certain cases organizations themselves to provide rights advisers on staff for patients who are in the health care process. Could I ask then who will pay for those people?
Mr Wessenger: I think, first of all, I should clarify to indicate there's been no decision made or the matter even considered with respect to designated persons within organizations to provide such services. The matter has not been considered or dealt with at this stage. I think it's fair to say that one could anticipate that it is possible there are existing people within some of these institutions who might be given such responsibilities, but that is a possible consideration. I certainly don't anticipate, as you indicated, the hiring of new people. I would be surprised if that was the approach that was taken.
I think the whole question of an integrated situation has to be looked at. Quite frankly, there is other legislation in the course of preparation at the moment, for instance the Public Hospitals Act, and whatever the movement is in the legislation, that area will undoubtedly relate to the consent to treatment.
Mrs Sullivan: Once again, the public and people who are involved in managing institutions are left with few answers. I'm going to be withdrawing this amendment. I wanted it on the table specifically to gather the information people need to be able to understand the implications of this act. Within eight or 10 days, we've had two answers; the one today is quite different than the one given last week. Then we are told, "Well, in fact, we don't know." The government doesn't know far too much about this legislation.
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The Chair: Is it my understanding you're withdrawing the motion, Mrs Sullivan?
Mrs Sullivan: I've withdrawn the motion.
The Chair: Next, we'll move to the PC motion, alternate 1.
Mr Sterling moves that the definition of "rights adviser" in subsection 1(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"`rights adviser' means,
"(a) a person who is a member of a prescribed category who gives rights advice in prescribed circumstances; or
"(b) a member of the Law Society of Upper Canada who is willing to act as a rights adviser under this act."
Mr Sterling: I'm quite willing to entertain an amendment to my amendment to include the advocates under the Advocacy Act if that is the only reason the government opposes this amendment.
Mr Wessenger: The reason we'd oppose this amendment is because, first of all, it specifically sets out one particular group which may or may not be included. Certainly no decision has been made on who might be included in the prescribed category and prescribed circumstances.
Second, the model might be somewhat expensive if it were the model adopted of providing legal counsel. In certain exceptional circumstances, I can see it might be required, but as a general approach it would be highly expensive. The cost of lawyers is fairly high, probably much higher than other forms of delivery.
Mr Jim Wilson: Are not legal aid lawyers currently providing rights advice in the mental health centres?
Mr Wessenger: Perhaps I'll have counsel indicate the present circumstance.
Ms Auksi: Sorry, you didn't get counsel. Regarding the part of the program that's delivered by duty counsel under legal aid, even the director of legal aid, Mr Bob Holden, during discussions that were held at the time the rights adviser program was being evaluated, recognized that it does not require a lawyer to master the pretty limited amount of legal rights information that a rights adviser delivers, so in fact it's not necessary to have someone of that high expertise and, in a sense, it's a waste of his expertise.
What a rights adviser needs, in addition to an understanding of the limited amount of legal information, is the ability to communicate well with people of doubtful mental capacity. They have to spend the time to learn how to do that well. That is part of the consideration.
Unfortunately, under legal aid, duty counsel who have been doing this will sometimes go to a training session and maybe will not get updated to the same extent as someone who spends more time getting specific training to do the task, who may be someone with a lesser level of skills generally but who for this purpose is perfectly fine, such as a paralegal, if you will. It's not to say that lawyers wouldn't be suitable, but it's certainly not necessary and, as Mr Wessenger suggested, for cost reasons, probably not desirable.
Mr Sterling: Since we've gotten into the debate about the cost of doing this, what does it cost the legal aid plan to provide these services now? I'm sure the parliamentary assistant will have that at his fingertips.
Mr Wessenger: I don't have that information. If you wish to obtain it --
Mr Sterling: I suspected you didn't, because probably you'll find that legal aid lawyers would be one heck of a bargain as compared to advocates under this Advocacy Commission in which you are creating a huge bureaucracy and are providing a $30-million operation to provide 200 advocates. I've got to tell you that you could probably buy 600 lawyers for the same price.
Interjection: Already trained.
Mr Sterling: Already trained. I would really like to take great opposition to the whole economic efficiency argument with regard to how much it would cost to hire a private lawyer. But I want to say that the reason I consider it essential that this particular group of individuals be put into the act is that I want to protect the vulnerable person who is out in some place in Ontario after this act comes into place.
If a doctor cannot get to a rights adviser under the Advocacy Commission because the office closed at 5 pm that day and there isn't anybody else around -- there's not a local number, there's nobody you can find -- I want the doctor or the health care provider to be able to call somebody in that community and say, "Hey, we've got a problem here and we need somebody who's not a bureaucrat or a civil servant," as all these advocates are going to be. "We want somebody who can come down and give the advice to this vulnerable person so we can carry on the treatment of this vulnerable person right away."
That's why I don't want to have to wait for this government to say, "We are going to put these people into this group," or, "We're not." I want that guarantee in this legislation now, because this is the last chance I as a member of the Legislature will have to ensure that out in the further reaches of the province in particular, but I'm sure it will occur even in this city, vulnerable people will be able to get rights advice on an emergency basis and that our health care providers can be assured that somebody's going to be there whom they can go to when the commission's offices close at 5 pm every weekday and they are not going to be there on Sunday afternoon.
Mr Wessenger: Mr Sterling, I understand your concerns. The only thing I can say is that certainly, when it comes to the drafting of the regulations, those concerns will be taken into account.
Mr Sterling: That's fine and dandy, Mr Parliamentary Assistant, but I want to know why we can't have it in now. Why can't we?
Mr Wessenger: There may be other --
Mr Sterling: If you don't have a good reason for no, then why not now? Why can't you assure the people of Ontario out there that their vulnerable adult friend or family member is going to have an adviser, when it comes down to a critical situation where the doctor is hesitating to act because you can't get a rights adviser there? Why can we not give those people that satisfaction right now?
Mr Wessenger: Mr Sterling, I would suggest to you there are other people in the community who could have this rights training and who could be available in those circumstances which you indicate. There are other professions, I think, that --
Mr Sterling: Will you guarantee that? Will you guarantee to the people of Ontario that there will be a rights adviser available 24 hours a day, seven days a week, 365 days of the year?
Mr Wessenger: Mr Sterling, it's --
Mr Sterling: You won't, and neither will this government. Why not take a group of 17,000 to 20,000 particular individuals who are out there and trained to give this kind of advice -- perhaps not as well as some other people, because they have other kinds of law which they practise -- but who are basically the best trained group of individuals we have in Ontario society? Why don't we give vulnerable people this break?
The Chair: Mr Wessenger, a response?
Mr Wessenger: I understand your concerns; I just don't agree with you that lawyers are the only persons who can deliver this type of service, Mr Sterling.
Mr Sterling: I haven't said that. That is taking me out of context.
Mr Wessenger: No, but you --
The Chair: Mr Sterling, allow him to finish his response, please.
Mr Wessenger: I need to be convinced that you have to have lawyers as a last resort. That may be in the case of some instances -- I don't want to say -- but I'm not convinced of it, and therefore I don't think you should select and designate out a specific group in this definition. It should be dealt with in regulation.
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Mr Sterling: You want advocates out of this then? Am I to understand that you don't want to designate any group, so we'll take advocates out of this definition? I mean, you can't have it both ways.
Mr Wessenger: We've already been through that discussion about the role --
Mr Sterling: Okay, and I'm willing to put advocates in if you're willing to put lawyers in.
Mr Wessenger: I don't have that great deal of confidence, Mr Sterling, that lawyers are the group of last resort.
Mr Sterling: I just said I'm willing to put advocates in; I didn't say I was only willing to put lawyers in. I said I'm quite willing to listen to a reasonable argument with regard to other groups that might give rights advice. I'm only concerned about the vulnerable person who doesn't have one of these other special people you're putting up, and I think there are more lawyers in Ontario than there are any other group that you can put up as potential rights advisers.
Mrs Sullivan: We'll be supporting this amendment. We feel it's a practical and a valuable one. The arguments Mr Sterling has put forward with respect to many of the areas of Ontario which will not have rights advisers at ready command we think is a good one.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the PC motion on subsection 1(1)? Opposed?
Motion negatived.
The Chair: Next, the PC motion on subsection 1(1), alternate 2. Mr Sterling.
Mr Sterling: This very much mirrors the Liberal amendment to this section. However, the government, as indicated by the parliamentary assistant, didn't want to designate any group. He could indicate at this point in time that he would support this amendment, having had second thoughts with regard to the first amendment, so I would wait for his response before I withdrew it.
The Chair: Mr Wessenger?
Mr Wessenger: Sorry, I was --
Mr Sterling: I said that this motion is very similar to the others but, following your arguments with regard to my previous amendment, I would have thought you would have second thoughts with regard to Ms Sullivan's amendment and probably would be quite anxious to support this one.
Mr Wessenger: I don't think it serves any useful purpose to revisit the discussion we had on the previous motion.
Mr Jim Wilson: If it would raise the intelligence of the discussion, it might be. We've not had reasonable responses from the government.
The Chair: Mr Sterling, do you wish to move this amendment?
Mr Sterling: No, I do not. I withdraw the amendment.
The Chair: Next, the Liberal motion on subsection 1(1). Mrs Sullivan.
Mrs Sullivan: I have two motions to subsection 1(1) which I'd like to stand down for consideration while we're dealing with section 22. Do you want me to read them into the record now or later?
The Chair: I prefer to have them moved now.
Mrs Sullivan moves that the definition of "treatment" in subsection 1(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out, and the following substituted:
"`treatment' means anything that is done for a therapeutic, preventive, palliative, diagnostic, cosmetic or other health-related purposes, and includes a diagnostic evaluation or a course of treatment."
Mrs Sullivan moves that subsection 1(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended to add the following definition:
"`diagnostic evaluation' includes the performance of such examinations or investigations as may be reasonably necessary in order to determine whether the circumstances set out in clause 22(1)(b) exist or to form the opinion described in clause 22(2)(b)."
Do we have unanimous consent to stand down?
Mr Jim Wilson: I just have a comment, Mr Chairman. Given the record of standing things down in this committee and then revisiting them, which has been abysmal, and given that the government invoked closure on Bill 74, my advice to Mrs Sullivan would be, don't stand these down; you may never get back to them.
The Chair: Do we have unanimous consent to stand these two motions down? Agreed.
The PC motion on subsection 1(1).
Mr Jim Wilson: We're going to withdraw this motion since our plan of care motion, which I think was the first one debated this afternoon, failed.
The Chair: Do we have unanimous consent to stand down the vote on the government reprint of subsection 1(1)? Agreed.
Next, the Liberal motion on subsection 2(2).
Mrs Sullivan moves that section 2 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:
"Emergency admission to program
"(2) This act does not apply with respect to a person admitted to a secure treatment program under section 124 of the Child and Family Services Act."
Mrs Sullivan: As you know, we had before us, in public hearings, representatives from children's aid societies and people who are involved in the delivery programs of the emergency secure treatment under the Child and Family Services Act. Their concerns were strong ones, and in my mind weren't particularly alleviated by the testimony from the Ministry of Community and Social Services.
While there are, through Bill 110, some references to the Child and Family Services Act, I felt that the reiteration, in this bill, of the pre-eminence of the CFSA with respect to the emergency secure treatment of children was an appropriate way to go so that there would be no misunderstanding.
As you know, the Child and Family Services Act provides children's rights, a process for consultation and a process for involvement of the children in decision-making with respect to their care as well as their health care. We felt that including this amendment simply underlined the pre-eminence of section 124 of the Child and Family Services Act.
Mr Jim Wilson: I think it's important that the comments Mrs Sullivan has just made be included in the historic record of the intention of section 2 of the act, yet I think it's a rather unusual precedent to start excluding all kinds of different acts from this act. The reprint clearly reads that this act only applies in respect of treatment administered by health practitioners, and it would seem to me that we might be getting on to a slippery slope here. I'd like to ask the parliamentary assistant to give us the government's opinion on this.
Mr Wessenger: We will be opposing this amendment on the basis that this amendment would take away all rights advice for any form of treatment from any child under 16 who is admitted to a facility mentioned under the Child and Family Services Act. We would be treating children differently in this particular type of institution from those otherwise. Although I'm not a constitutional law expert, I think treating children unequally with respect to rights advice might be considered contrary to the Charter of Rights and Freedoms.
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Mrs Sullivan: Could the parliamentary assistant then explain the dichotomy in the two laws? We will have the child and family services law on the books which says one thing and the Consent to Treatment Act on the books which says something quite different.
Mr Wessenger: I think I will hand this over to legal counsel, who will clarify the law with respect to the situation.
Mrs Sullivan: He's going to say, "Mrs Sullivan's right."
Mr Gilbert Sharpe: The opinion that the Ministry of Health circulated dealing with the Child and Family Services Act looks at the common law and whether it's been abrogated by that legislation and concludes that with the possible exception of section 132, dealing with psychotropic drugs, the ability of a young person in secure care in a Comsoc facility who is mentally competent to refuse treatment to so refuse is not abrogated by the CFSA. So there's really no conflict between Bill 109 and the CFSA except perhaps the provisions relating to secure-care psychotropic drug treatment under section 132. Even there it's arguable. We do waffle a bit in our opinion and there's no jurisprudence that could be found on that subject.
However, there are proposals that are now part of Bill 110 that were part of the amendments proposed by the government the last go-around that would clarify that area as well, so the provisions of Bill 109 would apply everywhere and to everyone, including kids in secure care.
Mr Sterling: I think we will vote for the amendment. We think it should be even more encompassing than this. We don't think this act should apply to people under the age of 16, because we're convinced by the evidence we heard in front of this committee that in dealing with adolescents, the codification of the common law and the new requirements set up under this statute are not beneficial overall to people under the age of 16. Bill 109, in my view, is an empowerment act which will allow people clear rules as to whether they consent or don't consent -- capable people, but in particular incapable people, and vulnerable people as well.
My concern is that I have not heard any evidence in front of this committee that there has been any kind of abuse of people between the ages of 12 and 16 by the health care professions that we need to change the existing common law which is in place now. The problem with changing the common law by introducing rights advisers into the situation is that we are empowering people who are 12, 13 and 14, who do not have the same life experience to make decisions. In some ways, by introducing rights advisers into certain circumstances, we are taking away the rights of guardians and parents in health care decisions.
Therefore, our position is very strongly in favour of Mrs Sullivan's amendment, but we will be introducing amendments later which will in fact go further and exclude from rights advice anybody under the age of 16 in dealing with consent to medical treatment.
We know and we've heard of some situations where there are concerns about young people, particularly who are in mental health care institutions, but we believe there are adequate protections there now, and those protections can continue to be provided. But our legislation and our history of legislation in this province has been that children and young adults, if you want to call the ages 12, 13, 14 and 15 that, are different, and to try to craft acts, Bill 109, Bill 108, Bill 74, to deal with both segments of the population is wrong and is particularly harmful to this age group.
I'm sure that if the parliamentary assistant said he would agree that we would take out everyone under 16, then of course this amendment wouldn't be necessary, but we will continue to support this amendment until we have that kind of indication. So it leads into a much larger debate.
The Chair: Further discussion? Seeing no further discussion on the Liberal motion on subsection 2(2), all those in favour? Opposed?
Motion negatived.
The Chair: Next, a Liberal motion on section 3.
Mrs Sullivan moves that section 3 of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "in emergencies" in the third line.
Mrs Sullivan: This amendment makes the bill equate more readily with existing common law. I'd just like to point out that the same amendment was accepted under Bill 108 in our discussions with respect to that bill. It seems that it is reasonable to have the same change accepted with this bill as has been accepted for the Substitute Decisions Act.
Mr Wessenger: We'll be accepting this amendment, but I might indicate at this time that counsel have indicated some concern, not at least with the words "in emergencies," but a concern that perhaps a further amendment of this section and the Substitute Decisions Act might be necessary. I just thought I'd indicate that at this time. We will accept this motion for the time being.
The Chair: Further discussion?
Mr Jim Wilson: I'm just wondering what the government's opinion is. Our next amendment deals with this section and reaffirms the common-law authority. Does that help clarify some of the wording at all?
Mr Wessenger: No, it doesn't really.
Mr Jim Wilson: It certainly clarifies the intent.
Mr Wessenger: The deletion of "in emergencies" is much more acceptable as a solution. I'm not saying there will be a further amendment; I'm just saying it's being considered by legal counsel; that's all.
Mrs Sullivan: I wonder if we could have now from counsel an indication of where the problem is here. It might be useful in discussions as we proceed.
Mr Wessenger: I have no objection to some clarification being given at this time.
Mr Sharpe: The intent of course is to provide clarification of what we're retaining in the common law and the notion of restraint is generally used only in very serious circumstances. It may be that using the term "emergency" without defining it causes other problems of interpretation, but the kind of thing we would hope to look at would be adding language before "prevent" in the fourth line like "imminent," the concept that it's not just preventing serious bodily harm, but perhaps preventing imminent and serious bodily harm, that it's a true urgent situation that would justify taking control of someone, by drugs if necessary, against his will, to restrain.
Mrs Sullivan: I know we shouldn't get into that debate now. If the government is intending to bring forward amendments, we'll be interested in them. We caution that restraining and confining are also necessary tools in working with people who frequently may fall out of a chair if not tied and where the emergency may not exist. So I hope issues of that nature are taken into account if the government is contemplating amendments in this area.
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Mr Wessenger: Perhaps we could have also other counsel respond to this issue.
Ms Carla McKague: Certainly the common-law right to restrain and confine, I think, is much less than seems to be indicated by, for instance, Mr Wilson's statement that this reiterates the common law. It is confined to urgent situations. As far as restraint and confinement for the purposes that you mentioned is concerned, Mrs Sullivan, I would have to go back to get the exact sections, but Bill 108 deals very extensively with who can authorize restraint for protection, restraint for people who do need to be restrained in a chair or in a bed for their own safety, and puts a great deal of care into defining when that is legitimate. It's certainly accepted by the government that those interventions very often are legitimate.
This section, without some sort of qualifier in it such as "imminent" or "emergency" -- which may be too strong -- would seem to undo the work that's gone into Bill 108 to ensure that great care is taken, that people are restrained when appropriate and not restrained when inappropriate.
Mr Sterling: I'm not certain of where the government is on this particular section.
Mr Wessenger: I think it might be fair to say that we have not made a decision on whether a further amendment is necessary at this time.
Mr Sterling: And you think it is.
Mr Wessenger: We have not made a decision; we have not considered it. It's just been raised today with me by counsel. I thought I should alert members of the committee, in case.
Mr Sterling: I guess my objection -- not my objection; the one part I want introduced into the debate before you come up with your final wording is that section 3 now reads, "This act does not affect the common-law duty of care givers to restrain" etc. When counsel was talking about it, she said "common-law right of care givers to restrain" etc. I think the use of "duty" is kind of a strange way to draft legislation when you're talking about restraining people.
If you want to talk about "authority," which is in our amendment, I think that's more appropriate. I didn't know there was a duty to restrain people by anybody in our society. Maybe I don't know something here, that a physician has the duty to shackle somebody down in certain circumstances. I think they feel a professional obligation to do that and reluctantly do it, but I just find it a strange way to place it in the legislation, that we in the Parliament of Ontario are saying that care givers have a duty to constrain people.
Mr Wessenger: I'm going to turn this over to legal counsel, but before I do, I think it's clear that there is a duty that exists for care givers to restrain where necessary to protect the patient, and if they don't comply with that duty, then there is a legal obligation. I'm sure counsel may be able to elaborate more on that, but what we're putting in legislation is this fact that it's a duty. I'll ask legal counsel to perhaps elaborate on that.
Mr Sterling: So that duty is not criminally or statute oriented; that's a civil duty.
Mr Wessenger: A common-law duty, yes.
Mr Sterling: It's a civil -- in other words, someone can sue.
Mr Wessenger: A civil liability test, yes.
Mr Sterling: I think you should use "authority." I don't think you should use "duty."
Mr Wessenger: Do you need to add anything?
Mr Sharpe: You've said it very well. I think the only thing I would add is there is a line of cases, primarily in the psychiatric field, of patients going out windows where they weren't supervised, or acting out in a way that they injured other patients or staff. Those cases, usually framed in negligence, speak of duties of care to take reasonable measures to prevent patients from harming themselves -- suicide and so on -- or harming others.
What we're trying to do here is retain those common-law duties that have been recognized through the years in the cases and confine them to the language of the cases where usually it's a true, very urgent, sort of emergency situation.
The Chair: Seeing no further discussion, all those in favour of the Liberal motion on section 3? Opposed?
Motion agreed to.
The Chair: I seem to have missed one in the government reprint on subsection 1(2). It's a deletion in the fourth line.
Mr Wessenger: The word "personal."
The Chair: Agreed? Carried.
Next we have a PC motion on section 3.
Mr Sterling: I have circulated a motion that takes into account the remarks I made about "duty" versus the word "authority," and rather than muddy the waters, what I'd like to do is propose a motion.
The Chair: Mr Sterling moves that section 3 of the bill, as amended and as reprinted to show the amendments proposed by the minister, be amended by striking out "duty" in the second line and replacing it with the word "authority."
Mr Sterling: I hope that's clear enough to everybody.
Mr Wessenger: I'll be opposing this amendment for two reasons. One is that if I remember all my tort law correctly, it has always referred to a "duty," so we're not using a word other than one that's recognized in law. I have some concern that the use of the word "authority" might in effect diminish the obligation of care givers. I think we clearly want to retain this obligation, this duty of care givers to restrain or confine a person and I think the word "authority" might, in the particular instance, weaken that obligation.
Mr Sterling: I don't know how the change in that word would differ from the common law which has been set up. I just find it strange to put in a statute what has been developed in a number of cases as to what the duties of a physician or a health care provider might be in certain circumstances.
The Chair: Seeing no further discussion, all those in favour of the PC motion on section 3. All those in favour? Opposed?
Motion negatived.
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The Chair: Okay, government reprint paragraph 5(1)1. Agreed?
Mr Sterling: We haven't passed section 4, have we?
The Chair: We'll go back to section 4; sorry.
Mr Sterling: I would prefer to stand that down until we deal with the liability section, section 24.
The Chair: Okay, we'll stand that down until we do section 4. Agreed? Okay, section 4, the government reprint. Comments?
Mr Jim Wilson: Sorry, section 4, the government reprint, we're standing that down.
The Chair: Oh, you want to stand down section 4.
Mr Sterling: Yes.
The Chair: I thought you wanted to stand down what we were discussing.
Mr Jim Wilson: No, section 4.
The Chair: Section 4. Okay. On the government reprint section 4, do we have unanimous consent to stand that down? Agreed.
Now on the government reprint, paragraph 5(1)1. Agreed? Carried.
The Liberal motion on paragraph 5(1)4.
Mrs Sullivan moves that subsection 5(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following paragraph:
"4. The consent must not have been obtained through misrepresentation or fraud."
Mrs Sullivan: In my reading of the common law -- in fact, a very good book which I would recommend to anybody -- one of the things that is always brought forward is the question of misrepresentation. The physician may withhold pertinent information, may soft-pedal information, may present details that end up with the patient not having a full picture of either the illness or the treatment proposed. In those cases, where there have been examples in the literature, the description of that scenario is "misrepresentation or fraud." I think it's a standard part of the common law and feel it should be included.
Mr Wessenger: I have no particular objection to it being added, so we'll agree to it, though I think it's probably already included in the terms, for clarification purposes.
Mr Jim Wilson: We'll certainly support it, but we do think it's redundant also. The term "voluntary" covers that.
The Chair: Further discussion? All those in favour of the Liberal motion on paragraph 5(1)4? Opposed?
Motion agreed to.
The Chair: The Liberal motion on clause 5(2)(a).
Mrs Sullivan moves that clause 5(2)(a) of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "received" in the first line "orally, in writing or in any other form reflecting the special needs of the person."
Mrs Sullivan: This addition is with respect to the transfer of information about the treatment, the side-effects, the consequences of not having the treatment, and to ensure that the person who may have a physical impairment or who may be of a different language from the physician who is providing the information receives the information in a way that he or she can understand. This follows the pattern of both the Substitute Decisions Act and the Advocacy Act.
Mr Wessenger: We do have some concerns about this amendment in the sense of the obligations it might impose upon health care providers. I think I'll ask policy staff to give the concerns.
Ms Auksi: I think it's more of a legal question than a policy question, but lawyers never want to answer the tough ones.
Mrs Sullivan: With respect, Mr Chairman, I believe this is a political question and I think this should be answered by the parliamentary assistant. This is not a question the ministry officials should be put in the place of responding to.
Mr Wessenger: I think the purpose of asking for the response was for clarification of interpretation of what it would provide. I'd be quite happy to say that our concerns are that this would impose a subjective over an objective test, which would place the obligation upon the health care provider to ensure that the person basically would put a subjective test rather than an objective test and would make it very difficult for health care providers in the circumstances.
That's the aspect and I was only really asking policy staff to indicate that this is their interpretation. That's the only aspect, and based on their interpretation, that's the reason for not supporting the proposal, because of the consequences of the amendment.
Mr Alvin Curling (Scarborough North): So you're supporting it.
Mr Wessenger: No, opposing it.
Mr Jim Wilson: While I've not had a lot of time to think whether we're going to support it or not, it seems to me that Mrs Sullivan is correct in introducing it, because we had similar amendments introduced and accepted by government in the Regulated Health Professions Act in terms of disseminating information and ensuring that information was received, transmitted and understood in every form available. I think that's the intent here. At that time, last summer, it was imperative that the government have this amendment in.
Mr Curling: I just want to reinforce what Mrs Sullivan had said, that looking at this society, which is quite multicultural too, and also, if I dare say, our illiteracy rate is pretty high, that orally would be quite an emphasis which could be placed on getting some consent. From a political point of view, I still didn't get the reason why you would not support it.
The Chair: Further comments, Mr Wessenger?
Mr Wessenger: I would like to ask staff to indicate their interpretation of what this could require, and that would perhaps indicate the reason, substantiate the concerns.
The Chair: Juta, could you please come forward?
Ms Auksi: It's our concern that by putting that provision in here, it could somehow be construed that the health care practitioner himself or herself would somehow be obliged to provide for these means of, let's say, interpretation, of providing for information available in many languages, many special forms of communication that may be required, depending on a person's disabilities.
Although there's no argument at all with the principle that these accommodations need to be made, the question is whether it should be on the shoulders of the health practitioner to arrange for that, provide for that. As things are currently, this is often done of course within hospital facilities. There are various arrangements made for all these kinds of accommodations, but one would not necessarily want to say that whenever someone goes to a doctor that it's the health practitioner who would somehow have to scurry around and make sure that an interpreter was found, for example.
It's true, it is a policy question then: Should there be a program of that kind? I think it's a separate policy question, though, and not one that is either unique to or appropriate to be dealt with in the Consent to Treatment Act. Certainly the human rights legislation would suggest there are all kinds of obligations to ensure the communication is appropriate to the situation.
Here a doctor could not proceed without having informed consent. Obviously if a person hasn't understood the information because the communication didn't happen in a manner that made it possible for the person to understand, then the doctor, for example, couldn't have informed consent. So the obligation is certainly there. The question is, whose responsibility is it to provide it? If that interpretation cannot be made by adding this provision, then I suppose it would be open to having that in there, but it seems to me that it is there and that's a separate policy issue.
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Mr Malkowski: I would like to move that this issue be stood down.
The Chair: Do we have unanimous consent to stand down this Liberal motion on clause 5(2)(a)?
Interjections.
Mr Jim Wilson: Make up your mind. Who's standing this down? Is Mr Malkowski standing this down? If he stands it down, we'll never see it again.
The Chair: Do we have unanimous consent?
Mrs Sullivan: No.
The Chair: Further discussion. Seeing no further discussion, all those in favour of the Liberal motion on clause 5(2)(a)? Opposed?
Motion negatived.
The Chair: A government reprint on subsection 5(2). Comments? Agreed.
Next we have a Liberal motion on subsection 5(3).
Mrs Sullivan moves that subsection 5(3) of the bill be struck out and the following substituted:
"Express or implied
"(3) Consent to treatment may be express or implied, as long as the consent complies with subsections (1) and (2)."
Mrs Sullivan: This is really clarification to ensure that no matter in what manner or what form the consent is provided, whether it is express or implied, there are the same provisions about the consent relating to the treatment, that the consent is being given voluntarily and that information was received about the treatment and the alternative courses of action and so on. It's really a clarification motion.
Mr Wessenger: We have no objection because I agree it does clarify.
Mr Jim Wilson: We'll be supporting the amendment.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the Liberal motion on subsection 5(3)? Opposed?
Motion agreed to.
The Chair: Next a Liberal motion on section 5.1.
Mrs Sullivan moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:
"Consent to course of treatment
"5.1 If, in consenting to a course of treatment, consent is given in accordance with this act to a treatment that is part of the course of treatment, no further consent is required in respect of the treatment that is part of the course of treatment."
Mrs Sullivan: This issue arose in the first round of public hearings with respect to definitions of "treatment" and "course of treatment," when there was discussion before the committee indicating that a course of treatment may include several separate scenarios with respect to the delivery of health care and different procedures which become part of the course of treatment.
There was concern expressed at the time that a separate consent would have to be given for each individual procedure although it was in fact part of the course of treatment. This motion clarifies that while the course of treatment can be specific unto itself, each individual part of the course of treatment doesn't require a separate consent.
Mr Wessenger: We will not be supporting it, based on the fact that legal counsel advises that it is not necessary because of the definition of "treatment." Perhaps I'll ask legal counsel to confirm that.
Mr Sharpe: The definition of "treatment" includes "a course of treatment" and a "plan of treatment," so that when a consent to treatment is obtained under this act, the elements in the course of treatment would be included.
Mrs Sullivan: If that's the case and if that's the understanding of the medical profession, why did health practitioners bring this issue forward and why were they concerned about it?
Mr Wessenger: I don't know why they brought it forward other than the fact that there have been misunderstandings with respect to the legislation. I think that's fair to say, particularly from the very beginning, particularly from the early drafts. But based on what legal counsel advises me, I don't see it as necessary. I also would agree with legal counsel's interpretation that once consent is given to a course of treatment or a plan of treatment, treatment may proceed with no further consent required.
Mr Jim Wilson: Just briefly, I agree with the advice the government's getting from legal counsel; it does seem redundant. Although it wouldn't be harmful to include it, certainly the definition of "treatment" does include "course of treatment." It all says the same thing to me.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the Liberal motion on section 5.1? Opposed?
Motion negatived.
The Chair: Next we have a government motion on subsection 6(1).
Mr Wessenger moves that the English version of subsection 6(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "who is capable with respect to a treatment" in the first and second lines and substituting "is capable with respect to a treatment if the person."
Mr Wessenger: It's just minor to clear up a drafting error.
The Chair: Further discussion?
Mrs Sullivan: Can we just have a minute?
The Chair: Certainly.
Mr Wessenger: It's also needed for consistency between the English and French versions. It's on the advice of legislative counsel that this is being moved.
Mrs Sullivan: You're actually only adding the words "who is." Is that right?
Mr Wessenger: We're just taking out the word "who." Just the word "who" is being removed.
Mrs Sullivan: No, you're putting a "who" in.
Mr Jim Wilson: No, the "who" out, but it's replacing "a person" at the end really. It's a rewording.
Mrs Sullivan: In the first and second lines.
Mr Wessenger: So it reads, "A person is capable with respect to a treatment."
Mrs Sullivan: Oh, okay.
The Chair: Discussion? Carried?
Motion agreed to.
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The Chair: Next, a Liberal motion on subsection 6(1).
Mrs Sullivan moves that subsection 6(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Capacity with respect to treatment
"(1) A person is capable with respect to a treatment if the person is able to understand the subject matter in respect of which consent is required and is able to appreciate the consequences of giving or withholding consent."
Mrs Sullivan: This definition conforms to that of "capacity" in the Mental Health Act. The definition as it's in the bill, frankly, to me, makes no sense. The "reasonably foreseeable consequences of a decision or lack of decision" are of concern. What is of concern is the capacity to understand the consequences of saying, "Yes, I will undergo that treatment," or, "No, I will not undergo that treatment." It seems to me that for consistency with the one act and to make sense, we should accept this amendment.
Mr Wessenger: My problem with this amendment is that the section is in the same language as in Bill 108 and I think we should keep consistency between the two bills. I think that's the reason why we should retain the existing language, to have consistency between Bill 108 and Bill 109.
Mrs Sullivan: We have an opportunity to bring Bill 108 into line with this bill and with the Mental Health Act. It should be appropriate that all the bills reflect the same definition of "capacity" so that there's consistency and clarity in the approach, and the one bill that's extant and in operation now is the Mental Health Act. The definition in Bill 109, as I've indicated, makes no sense. An accompanying and comparable amendment to Bill 108 is going to be on the table. I think it should be looked at very seriously and accepted today.
Mr Sterling: This section relates very much to section 9 of the bill, which requires the health practitioner to apply some prescribed criteria to determine the capacity of the person. What is the prescribed criteria that the Ministry of Health has developed to determine the capacity?
Mr Wessenger: At this stage I think I'll call on legal counsel perhaps to make some comments with respect to the Weisstub report. Would it now be an appropriate time --
Mr Sharpe: I looked at Juta and she said, "Don't you dare."
Mr Jim Wilson: That's what our amendment does.
Mr Sharpe: Several years ago, as people know, there was a study done on mental competency by Professor Weisstub and it made a number of recommendations, very good ones, on what types of criteria and procedures should be developed and applied for assessing mental competency or capacity. The ministry has been consulting with a number of groups and is developing standards and criteria. To my knowledge, these haven't been finalized as yet. The consultation process is still going on, so I don't believe there are any criteria that could be put before the committee today but I do know there's a process that's been ongoing for a while to do this.
Mr Jim Wilson: Just along those lines, members will know that with the PC motion dealing with subsection 6(1), there we've tried to delineate some of those criteria and that's been extracted from the Weisstub report, for the information of committee members.
We're presented really with three choices here in terms of the Liberal amendment, the government reprint and the PC motion. Given that, I think Mr Sterling has a question or comment.
Mr Sterling: The definition of "capacity" with respect to treatment doesn't really mean anything until you have the test. That's why we think that "capacity" should be defined in terms of what the test is going to be. That's why we've put forward our amendment. I guess it could be argued that it's a higher test than either in the existing bill or in the Liberal amendment. But it's a real test as well and I guess it has some ground underneath it.
Mr Wessenger: The only thing I would reiterate is that I believe we have to have consistency on these points. I think Mr Fram from the Ministry of the Attorney General probably would have some comments on this whole question of proposing the amendment, on the basis that there should be consistency between the two acts. Until there is agreed-upon language between the two ministries, we should stick with the existing definition. Mr Fram, if I remember correctly, probably would have said that the test of capacity is a more workable test, I would think, than perhaps the one set out in the PC motion which, as indicated, raises a much higher standard. I'm just trying to perhaps paraphrase the comment made. Mr Winninger might want to comment on this issue as well.
Mr Winninger: Certainly, as Mr Wessenger points out, it's desirable to have consistency across the statutes. We have a definition for the purpose of personal care in section 46 of the act; I don't have it with me right at the moment, but that's where we delineate our definition.
I'm a little concerned about the wording in the Liberal motion, which would suggest that the person would have "to understand the subject matter in respect of which consent is required." That could be interpreted quite broadly and might place a higher test than is desired in the context of this particular section.
Mrs Sullivan: I find it interesting that the legislation which is now on the books, which is now in play in Ontario, where mental competence and capacity are an issue, is the Mental Health Act. That is the one piece of legislation people are now working with on a daily basis that includes a definition of "capacity." The definition I've included in my amendment is the same as the definition in the Mental Health Act. It is exactly the same definition.
I look at this definition that's proposed here, which says that the patient who is capable with respect to a treatment "is able to appreciate the consequences" of a decision or lack of decision. Surely what the health practitioner is interested in isn't whether or not the person is going to make up his mind, but how he's going to make it up. Are they going to say, "Yes, I want this treatment," or, "No, I don't want this treatment"? That's the issue here.
The subject matter question that Mr Winninger raises, once again, is covered by the Mental Health Act. It's the same definition as "capacity" in that act. The subject matter would clearly include the issues that are included in clause 5(2)(a), which includes the relevant information which has to be recorded or provided as a part of informed consent. That is the subject matter. It's very clear.
Mr Sterling: Because this particular definition was included in Bill 108, does it mean we should be consistently wrong in Bill 109 if it was wrong in 108? I don't find that kind of defence -- of perhaps a mistake -- a compelling argument to sway me to vote against this particular amendment of Mrs Sullivan. If she is the one who is arguing consistency with something that has been interpreted in law, probably in a number of cases because it already exists in law, then I find her arguments much more compelling than those of the parliamentary assistant. We can go back and change Bill 108 right now if we want in this committee, if there's no good reason to turn aside Mrs Sullivan's arguments.
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Mr Wessenger: I think perhaps for clarification, we have counsel here who might be able to throw some light on the matter with respect to the definition in this act and in 108. I wonder if Ms McKague could perhaps comment on this.
Ms McKague: Actually, what I should be commenting on, I believe, is the definition in the Mental Health Act, which is what Ms Sullivan has raised. In fact, since -- I'm not sure if it's 1986 or 1987 -- that definition with respect to competency to consent to treatment is a two-part definition. The first part of it, which Ms Sullivan has quoted, is exactly as she's quoted in her proposed amendment. The other is in -- if you've got the old numbering, I believe section 35 expands on that definition.
Mr Winninger: The new numbering, by the way, is subsection 49(1) in the RSO 1990.
Ms McKague: Then the old number 35 and the new -- Mr Winninger's given you the number -- reads, "In this section," which is the section dealing with consent to treatment, "and in sections 35a, 35b and 35c "`having the ability to understand the subject matter in respect of which consent is requested' in the definition of `mentally competent,'" which is what was quoted, "means having the ability to understand the nature of the illness for which treatment is proposed and the treatment proposed." That's it; that's simply it. That's the definition of the first part, understanding the subject matter, understanding the nature of the illness and the nature of the treatment, and then of course the appreciation part of the other test clicks in.
I could add, by the way, that this test has not yet been extensively interpreted by the courts. The issue of competency to consent to treatment under the Mental Health Act has been the subject of a very small handful of appeals and so far as I know only one at the appeal court level.
Mr Jim Wilson: Knowing that Professor Weisstub knew the definition in the Mental Health Act, that's why our proposal, the proposed amendment which is following, talks about the "nature of the condition for which the treatment is proposed" and the "nature of the proposed treatment."
I'm just wondering, it seems to me that the three terms used here, to loosely sum it up: It is being able to understand the information that's relevant in the government reprint. In the Liberal motion, it's being able to understand the subject matter. In ours, it's the nature of the condition or illness. Does anyone know, in legal terms, what the difference would be between those three? When Mr Winninger commented on Mrs Sullivan's, he said that understanding the subject matter might be a higher test than understanding the information relevant to making the decision. Weisstub and the Mental Health Act use the term "nature." So for arguments of consistency, one would think that our amendment, in part anyway, would hit the nail on the head a little closer.
Mr Wessenger: I understand you'd like legal counsel to comment.
Mr Jim Wilson: Sure.
Mr Sharpe: I can start. We have many competent counsel at the table to comment on this. It seems that the government provision in 6(1), which speaks of "information that is relevant to making a decision concerning the treatment," is very broad -- any information that's relevant. Relevant to whom? I guess to a reasonable patient.
The Liberal motion, understanding the subject matter in respect of which consent is required, when we wrote the provision, I guess it was in 1978, in the Mental Health Act, we took into account language used in cases that are cited in the ministry opinion on consent, like Johnston v Wellesley Hospital and others. That perhaps may be a little more restrictive than 6(1), "subject matter in respect of which consent is required." The subject is surgery tomorrow, and do you have the ability -- not do you actually understand but do you have the ability -- to understand whatever is relevant to that surgery tomorrow?
The PC motion of course gets into specifics relating to understanding "the nature of the condition for which the treatment is proposed." You know you have an ulcer that needs surgery tomorrow morning and without the surgery there could be problems, and the nature of the proposed treatment I assume would embrace risks associated with the treatment, because nature of the treatment narrowly taken might just be, "You're going to be put to sleep and your ulcer will be excised and this is how long it's going to take to recover from that treatment."
But one would want to read it more broadly than that, of course, because the cases speak also in terms of the ability to understand all of the risks associated with the treatment. That would be clearly embraced in the government provision of information relevant to making a decision. That would be the most broadly based net that could be cast.
As soon as we move away from that into "subject matter" and into the specific nature of this or that, one perhaps risks, since we're codifying the area here, a court saying that we have redefined Reibel v Hughes, Hopp v Lepp and some of the other decisions on informed consent and defined out certain aspects. Although we have "informed consent" defined in the bill, one would think you would then relate the capacity test to the ability to understand what is necessary to give an informed consent, and the government provision in section 6 deals with that very broadly, any information relevant to making the decision. The other provisions arguably are somewhat more restrictive.
That's my shot. As I say, there may be others at the table who would like to take a crack at the distinctions in the language.
The Chair: Thank you. Mr Wilson.
Mr Jim Wilson: I'm just wondering, with the committee's indulgence, if we could read in the PC amendment, since we're discussing it, for the record and for viewers at home.
The Chair: We can only have one motion at a time, unless we get unanimous consent from the committee.
Mr Jim Wilson: We're dealing with this sort of as a block of three anyway, I would think.
The Chair: Do we have unanimous consent to read in the PC motion? Agreed.
Mr Jim Wilson moves that subsection 6(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Capacity with respect to treatment
"(1) A person is capable with respect to a treatment if the person is able,
"(a) to understand the nature of the condition for which the treatment is proposed;
"(b) to understand the nature of the proposed treatment; and
"(c) to appreciate the consequences of giving or withholding consent to the treatment."
Mr Jim Wilson: We've been discussing this for the past few minutes. I still don't understand, although I think Mr Sharpe gave a very good explanation, but having heard the wording in the Mental Health Act that deals with the term "nature," and taking Mr Sharpe's word -- and I agree that the government's reprint definition is broader and therefore a fairly low threshold test -- are we being consistent with the Mental Health Act if we accept subsection 6(1) in the reprint? We're only being consistent, if I understand your reasoning, because we're setting an even lower test than the Mental Health Act, so as long as we don't do anything tougher, we're all right.
Mrs Sullivan: I don't want to debate the learned lawyer, but the question of subject matter encompasses all of the issues that are included in subsection 5(2) which provide for informed consent -- the information about the treatment, the alternative courses of action, the material effects, the risks, the side-effects, the consequences of not having the treatment -- as well as the specific decision with respect to the action that may have to occur, which may be signing a specific consent form, having received the information, to enable a surgeon to perform surgery, which is the treatment proposed. I cannot see that by using the words "subject matter" we are limiting the content of the information that's being proposed. In fact it would be broad enough to cover any and all subject matter.
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The other question that I feel quite strongly about relates to the last four words in my amendment and the last five words in the government's proposal. I note that the Conservatives' proposal concurs more closely with mine. Mine says that the issue is "giving or withholding consent." The government's drafting says the "decision or lack of decision," which to me makes absolutely no sense at all. How is the health practitioner going to respond if the issue at hand is whether a person can or can't decide?
The issue is: Is the person going to say, "Yes, I agree to the treatment. I understand it," or, "No, I'm not going to agree to the treatment, and let's talk about an alternative treatment"? The issue isn't decision or lack of decision, whether the person is decided or undecided. The issue is, are you going to give consent or aren't you going to give consent? Those are the issues that are of concern to the physician or any other health care practitioner.
Mr Wessenger: I was trying to restrain from being a lawyer, but I think I'm going to enter into this discussion just to give my own viewpoint with respect to the section.
It appears to me that subsection 6(1) establishes a much lower threshold for capacity than either of the amendments. It would appear to me that the Liberal amendment would require the person to understand all the aspects of an informed consent. On the other hand, the definition under subsection 6(1) would enable a person who perhaps may only have understood the fact that if he or she didn't have the operation, he or she might not live -- he or she might be able to understand that aspect of giving a consent but might be unable to understand the aspects of the illness. To me, it gives a greater ability of individual patients to make a decision within the framework of their ability.
It's always this whole question of empowerment really, whether you want a restrictive or restricted definition of capacity or a less restrictive one. This is just, as I said, my own interpretation. I think this definition, both in Bill 108 and Bill 109, tries to give greater ability to individuals to make decisions within the frame of their own abilities to understand, as long as they can understand sufficient of the information to be able to make a decision. That's my view. I think, as a policy matter, there is obviously a decision here to err on the side of giving people the ability to make those decisions.
With respect to a lack of decision, I think it's important there -- well, whether it makes any difference between that and "withholding consent," I don't know. A lack of decision could be just the inability to make a decision.
Mrs Sullivan: I'm just a little concerned about the last remarks of the parliamentary assistant, that the lack of decision could be simply the inability to make a decision.
Mr Wessenger: If I might elaborate on it --
Mrs Sullivan: The physician who's in a position of determining where next to go with the patient isn't interested in the patient's deciding or hesitating about making a decision or not making a decision. The physician's facing the person in terms of developing the course of treatment. The physician has to know whether the person agrees, whether the person refuses, and then the physician can respond in another way, either by proposing an alternative treatment or an alternative physician or whatever. Surely the point that's important for the practitioner is yes or no.
Mr Wessenger: If I might just elaborate, the patient may not make a decision, not because of the inability to make a decision but just because of the refusal, shall we say, to make a decision, and a refusal to make a decision would have to be construed the same way as refusing to take the treatment. Therefore, I can see the reason for lack-of-decision language, because a failure to make a decision is really construed the same as refusing to take the treatment.
The Chair: Further discussion? Seeing no further discussion, on the Liberal motion on subsection 6(1), all those in favour? Opposed?
Motion negatived.
The Chair: On the PC motion on subsection 6(1), further discussion?
Mr Jim Wilson: I'll be withdrawing this motion and supporting the government reprint.
The Chair: Thank you, Mr Wilson.
Okay, do we have unanimous consent to move the government reprint on section 8? It's a deletion. We need unanimous consent to move. Agreed? Agreed.
Discussion on the government reprint section 8 deletion? Seeing no discussion, agreed? Carried.
I understand we need a brief recess before we go on to section 10, so that the interested parties can sit down and discuss this. We'll have a brief recess.
The committee recessed at 1617.
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The Chair: I call this meeting back to order. We will now be moving to section 10, the Liberal motion on subsection 10(1).
Mrs Sullivan moves that subsection 10(1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Finding of incapacity
"(1) If a health practitioner finds that a person is incapable with respect to a treatment, the health practitioner shall ensure that the person is advised of the finding."
Mrs Sullivan: Basically, this amendment reflects the discussion with respect to the age provisions and removes the age provision with respect to information that's transferred from the practitioner to the patient.
One can see, by example, that if a practitioner was speaking with a 10-year-old in terms of conveying the information that the child is incapable, in the physician's opinion, of consenting to the treatment, the physician would convey that information in a way that the child would understand and would smooth the way for the substitute decision-maker, either the parent or guardian, to come in. It reflects, I think, pretty much the sense of the Child and Family Services Act and provides a consistency within this act.
Mr Wessenger: We'll be opposing this amendment because, in effect, it would impose quite an obligation on health practitioners. Particularly, I think even a three-year-old would have to be advised. I think we've clearly set out the 12-year age limitation, so for that reason we'll oppose the amendment.
Mr Jim Wilson: For similar reasons, I'll be opposing this amendment also.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the Liberal motion on subsection 10(1)? Opposed?
Motion negatived.
The Chair: The Liberal motion on subsection 10(1).
Mrs Sullivan moves that subsection 10(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "twelve years" in the second line, and substituting "sixteen years."
Mrs Sullivan: Mr Chairman, this section, as you know, the entire section of the bill, relates to the provision of rights advice which is mandatory for people who've been determined to be incapable. We heard some pretty convincing discussion from practitioners at the Hospital for Sick Children, by example, who provided us with examples of where the intervention of a rights adviser with a person who is a child and who may be in a physical situation in which fear is conditioning the judgement with respect to consent could refuse or could question the fact that he or she is considered to be incapable -- a rights adviser would automatically intervene in that circumstance.
I give you the example of a child perhaps with a malformed spine, who understands, because of pain that has accompanied previous operations to correct that problem, that the proposal for subsequent operations may indeed bring with it additional pain. The practitioner who has determined the child is incapable of making that decision alone would clearly be involving the parent or guardian in a relationship that would be really a triumvirate, and in fact it may be more than a triumvirate. But the triumvirate would be the child, the parent and the practitioner discussing the issues.
The parent ultimately would have the responsibility under the Substitute Decisions Act to provide formal consent, but when the determination of incapacity brings an automatic right to another intervenor who provides rights advice, we see that the trust of the working group, the triumvirate as I've called it, can be broken down, that the child would see another way out of the pain, which could be imminent, another way of postponing what in fact on the best medical evidence is in the child's best interests.
I was quite impressed with much of the presentation from the Hospital for Sick Children physicians. I think one of the things they underlined with us was the value and necessity of the trusting relationship between the physician and the patient and the working group relationship between the physician, the patient who is a child and the parent. For that reason, I think it's rational to move the automatic rights advice to the age of 16 so that the practitioner can continue working in that trusting relationship with the involvement of the parent and guardian in decision-making without the extra intervenor, which can in fact be an impediment to the provision of the finest medical care available for that child.
Mr Jim Wilson: Committee members will note that this Liberal amendment is exactly the same as the PC amendment on subsection 10(1). I just want to point out for the record that the only opposition party that's consistent here is the PC. It doesn't make sense to me that the Liberal Party would have introduced the previous amendment, which really would have pertained to persons of all ages, and then come in with a similar amendment or the exact amendment to ours that had already been tabled. They brought theirs in later this afternoon.
Hence, we'll be supporting the Liberal motion but want to point out, I think in fairness, that we've been consistent. Mr Sterling said early on in these hearings that we really are only supportive of this legislation if it pertains in terms of rights advice to those 16 years of age and up.
Mr Sterling: I want to say that I think the government should seriously consider this amendment, because I believe we would not have taken this position had we been able to somehow hear a balance of evidence which said that the empowerment of young people between the ages of 12 and 16 would seem to be done in a rational, logical way for the overall good of that age group.
It's just after hearing the evidence dealing with that immature group that we came to the conclusion it was wrong for us to try to include in the same category of empowerment those people in that age group and deal with them in the same manner as we deal with adults, as appears to be the case in this statute.
I know there are some differences, but the differences, in my view, don't measure up to the evidence we heard. I just don't understand the desire of the government to enter into this period of time in people's lives and introduce conflict between families, their siblings, their kids, their children, to have the state involved to that degree. I really think it's a mistake.
Mr Wessenger: We'll be opposing this amendment, because it's clear policy of our government that children at the age of 12 years and more should be entitled to rights advice. Somehow I find some inconsistency in saying that children 12 years of age and more should not be entitled to rights advice under this act, when at the same time we give them rights and impose obligations under the Young Offenders Act. It seems logical that we should have consistency in dealing with children and having a common approach with respect to rights and obligations and with respect to ages.
Mr Jim Wilson: I think the public should be aware that the NDP cabinet took the decision some time ago that rights advice would be made available to persons 12 years of age and up rather than our preference of 16 years of age and up. In light of the public hearings we've had, the children's aid societies, children's hospitals and the number of groups that came forward that really helped convince Mr Sterling and I to introduce the position of 16 years of age, I would like to know from the parliamentary assistant why the government would take that decision.
I suspect the decision was taken more along the lines of empowerment, without a full understanding of how this can affect our health care system and indeed those children between the ages of 12 and 16. I'd like a further explanation, because I think it's very important. This section will be problematic in the future and the public will have a right to look back at the Hansard and see what the thinking of the government of the day was.
Mr Wessenger: If we look at the whole common-law situation with respect to the age of capacity, it's clear that there's no particular age set out with respect to the capacity of children. We also heard very compelling presentations that many children 12 years and up have the capacity to make decisions. If the child has the capacity to make decisions, and perhaps most children in most circumstances would have that capacity, it would seem not proper to deny a group, children between the ages of 12 and 16, the rights that adults have. It doesn't make sense to differentiate, to discriminate against a particular group of people because of a particular age level.
One could argue that we've been criticized for setting 12 years as a minimum standard for rights advice by some groups, but I think that was a practicality. We also heard evidence that 12 years of age perhaps is the age at which most children would have capacity, or a large number of children would have capacity, to make most decisions, and it seemed reasonable in a certain sense to use 12 as the cutoff age in these circumstances.
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Mrs Sullivan: In response to the comments from the parliamentary assistant, I'd like to point out that subsection 10(13) indicates that a person of any age is entitled to make an application to the board under section 26. The rights advice kicks in after the person has been determined as being incapable of making a decision.
As this act is currently written, the rights adviser is to advise the person on a mandatory basis that he has the right to make an appeal. Under the provisions of this act, the person who is 11 or 6 in fact can appeal to the Consent and Capacity Review Board. That is not left out; it is not off the table as far as a younger person is concerned.
What I'm very concerned about is the relationship of trust. I believe that the relationship between the physician and a child between zero and any age, frankly, is and should be one of trust, and that that relationship of trust can in fact be broken down when there is an automatic third intervenor who becomes a party to the treatment decision but who is without any responsibility in terms of the delivery of the treatment.
Indeed, the treatment can be impinged upon by the involvement of the rights adviser who when called in can say, "Yes, but you have the right to appeal your incapacity." Indeed, the group relationship of parent, child and practitioner can be seriously broken down and medical treatment interfered with. The right to appeal to the board is clearly available to anybody of any age. The mandatory advice, which involves a human being outside of the consultative process with respect to medical care, can become a factor that impedes the appropriate delivery of medical care.
Mr Sterling: I don't know whether Mr Wessenger wanted to respond to Mrs Sullivan, but I'm quite willing to postpone my remarks until he does.
Mr Wessenger: I'd like to comment with respect to subsection 10(13) regarding the right of a person of any age to make application to the board. In most cases, it's not really a very substantial right. It would probably only come into effect at such stage where, for example, an advocacy group such as Justice for Children might be brought in in a particular difficult situation. In other words, in real terms, there basically is no practical right for the child under 12 without the rights advice being given. I think that's fair to say.
I have great difficulty understanding the objection to giving rights advice to a 12- or a 13- or a 14-year-old child, because it would seem to me, as was suggested in the evidence of Justice for Children, that what would normally occur in a treatment situation is if a child, first of all, said he didn't want the treatment, the health practitioner would have the child discuss the matter with the parents or another physician. So after all processes had been exhausted with respect to trying to convince the child with respect to the treatment, and the child still insisted after that group discussion or the discussion with the parents, only at that stage would the rights adviser come into play. I would see this legislation working in that way. That certainly was the way the Justice for Children indicated it felt the legislation would work. I find it very difficult to understand why the opposition parties would object to a child having those rights in those circumstances.
Mr Sterling: There are reasons why you wouldn't understand. Basically I think you view the world very much differently than we do.
First of all, let me say that Justice for Children, in my view, doesn't represent very many people in this province. In fact they are a group of lawyers, as I understand it, who are paid by the government to represent children, usually in pretty dire circumstances, and, in my view, don't represent anywhere near the mainstream of Canadian or Ontario society. I don't know how large their organization is, but I suspect it's very small. Therefore, for you to rely on their testimony in front of this committee is giving a great deal of credibility to a very minor point of view in this province.
Second, we do not deny that young people should have rights advice, but what we have concern with is what spins out of getting rights advice, that is, a delay, an appeal procedure, a delay to treatment of our young people, which can be very damaging to them.
We were particularly impressed with the Youthdale Treatment Centres testimony in front of this committee, whereby combining the rights of young people to appeal under these acts together with the right to appeal under the Mental Health Act and the Child and Family Services Act effectively would block treatment to some of the most troubled young people in our province for the period of time that Youthdale would have them in order to give them treatment.
It's not the rights advice that we complain about; it's the access to an appeal procedure which will drag out the time between the confrontation of the health care provider and the treatment taking place.
Third, we believe very strongly in the role of the family and the other part of the community to take a more active role in the decision-making of a person who is 12, 13 or 14 years of age than we do when a person reaches the age of 16, 17, or 18. We had psychologists and psychiatrists come before this committee and tell us that while those people who are 12, 13 or 14 can reason, their decisions lack the maturity of experience in order to determine what is best for them in the long run.
I take that expert evidence and I ask myself, should we be creating the same model of consultation of rights advice for 12-, 13- or 14-year-olds as we are for people who are 16, 17 and 18 who have the experience of life to determine if they should have that treatment and the detrimental effects on their lives if they don't accept that treatment?
That's where we draw our line. We don't draw it on the basis that you'd like to paint us as saying that people 12, 13, or 14 are entitled to advice as much as somebody who is older. Nobody on this committee, I don't believe, in the opposition would say we should deny anybody knowing what their rights are. But what we're saying is that somebody else has to be involved in that decision.
We believe that the state is abrogating some of its responsibility to young, inexperienced people by setting forth the rules for consent for those young people in the same terms as we are for adults in our society. We think you're doing a great deal of harm to 12-, 13- and 14-year-olds by including them under the same appeal procedures so they can drag out the time between their confrontation between the health care provider and treatment.
We believe that the balance between treatment and consent might be more accurately reflected for adults in this legislation than it is for young people. We believe you put far too high, in the case of 12- and 13- and 14-year-olds, the whole issue of consent versus what we as society owe them to treat them for their immediate health care problems. That's why we think it should be 16.
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It has nothing to do with whether or not somebody sits down and speaks to them and advises them about their rights. It has to do with the way of getting a kid to proper medical treatment. I urge the parliamentary assistant to go to his minister and ask her if she really understands what the effects of putting this age at 12 are.
It's the appeal procedure, it's the duplicity of appeal procedures, and the fact that you're stalling the time between the time when the kid is there and when he's going to get treatment. You're also treating him the same as you are an adult and you're saying the 13-year-old has the same wisdom as somebody who has an experience of life or three or four more years.
We've heard in front of this committee that in most cases that magic age is around 14, when they start to lose their immaturity. I think we should take the results of the expert evidence we had in front of this committee and say, "Okay, let's err on the side of being helpful to these kids and say 15 is the age." That's why we have it under 16 and that's why we very strongly support this amendment and we have the exact same amendment in front of you.
We're going to raise this issue again in committee of the whole House. This is one issue in which we think this legislation should be fought very strongly. Quite frankly, I think you should really seriously revisit this. I don't care whether your cabinet made that decision six months ago. I didn't know what I know now six months ago. It's unfortunate your minister wasn't here to hear that testimony, but we were and we will continue to push this amendment very strongly.
Mrs Sullivan: Once again, as we're continuing this discussion, the parliamentary assistant has indicated he doesn't understand why the opposition opposes the automatic rights adviser at age 12. What we see as a result of this process, the intervention of the rights adviser, is that it implies an independence of action at all ages between 12 and 16, or 12 and over, in all cases.
We have certainly under the law treated children very differently, according to various levels of maturity as they're seen by society at the time. Whether it's the age of driving, whether it's the age of majority, whether it's the age for legal drinking, there are provisions in many acts that in fact specify different ages because there is a recognition in law of varying levels of maturity and understanding of the responsibilities associated with the laws and the rights to do things or not to do things.
In this case, the automatic intervention of the rights adviser and hence the appeal process availability, information about the appeal process, implies that in every case the child of 12 is open to a separate, independent action with or without the maturity. If we go back and look at the professional judgement that has been exercised in determining the capability of the child, it is professional.
The professional judgement has been made on the determination as to whether the person can understand the illness or disease, the treatment that's proposed, the consequences of not having that treatment, of the side-effects of having that treatment and those are the bases on which -- as we discussed in the discussion on capacity, they are part of the information which the capable person must understand. The professional practitioner has made a professional determination that a person of 13 perhaps is not capable in that circumstance of understanding the full consequences of providing consent and the practitioner wants to involve the substitute decision-maker in providing that consent.
We know that a child of 14 may make a decision, depending on the circumstances, to look to the appeal process for fear of pain, for fear of the risks associated with a particular procedure. A child may be told he may walk with a limp. He may be told there will be other physical ramifications that will be visible. The child may refuse or request the appeal process out of fear of social issues that he would face in the classroom or in his neighbourhood, whether it's the fear of people laughing at him because he's wearing training shoes or whether it's the fear of looking different because he has train tracks.
What we see here is the assumption that the independence of action should occur in all cases, at all times, and will be available despite the professional judgement that's been made with respect to the capacity of the person.
The Chair: Further discussion? Seeing no further discussion on the Liberal motion on subsection 10(1), all those in favour?
Mr Jim Wilson: Could we have a recorded vote?
The Chair: A recorded vote.
The committee divided on Mrs Sullivan's motion, which was negatived on the following vote:
Ayes--4
Miclash, Sterling, Sullivan, Wilson (Simcoe West).
Nays--5
Carter, Morrow, Sutherland, Wessenger, Winninger.
The Chair: I take it the PCs don't want to introduce their next motion.
Mr Jim Wilson: Mr Chairman, given that our next motion is exactly the same as the one just defeated, we'll withdraw.
The Chair: Thank you. Next we'll go to the PC motion on subsection 10(2).
Mr Jim Wilson moves that subsection 10(2) of the bill, as reprinted to show the amendments proposed by the minister, be struck out.
Mr Jim Wilson: Essentially, our concern is with the government amendments to subsections 10(2) and (3), that health practitioners who work in a psychiatric facility or prescribed health facility will have one set of rules to follow and health practitioners who work in places other than a psychiatric health facility or prescribed health facility will have to follow a different set of rules.
We would argue that this act is already overly complex and that different procedures for hospitals, prescribed health care facilities, psychiatric facilities and other community settings will add to this complexity. What we're driving at here is some cooperation so it isn't the place of treatment that's the determining factor but the kind of treatment a patient receives.
Mr Wessenger: We'll be opposing this motion because it would take away existing rights, in fact, rights that had been introduced by Minister of Health Larry Grossman under the previous Conservative government.
Mr Jim Wilson: Look where he is today.
Mr Kimble Sutherland (Oxford): On a phone-in show.
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Mr Jim Wilson: I won't belabour the point, although it does seem strange to us that the government's decided to construct this legislation in the manner it has. It just doesn't seem consistent. It seems unfair to health care practitioners in terms of the confusion that this section of the legislation may lead to.
I say that in light of the fact that we've seen no true commitment on behalf of the government, as pertaining to Bill 109, to an education program for the College of Physicians and Surgeons and the members of the Ontario Medical Association.
The Chair: Further discussion? Seeing no further discussion, we'll proceed to the vote on the PC motion on subsection 10(2). All those in favour? Opposed?
Motion negatived.
The Chair: The Liberal amendment on subsection 10(2).
Mrs Sullivan: I have a couple of amendments on 10(2). Am I to understand that because the age motion under 10(1) has been defeated, the amendments with respect to age on 10(2) and 10(3) should not be put forward? I'd like to put them forward unless they're now considered to be out of order.
The Chair: Go ahead and move them.
Mrs Sullivan moves that subsection 10(2) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "twelve years" in line three, and substituting "sixteen years."
Mrs Sullivan: I think it's clear that the discussion on this motion will be as it was on the last.
Mr Wessenger: We will be opposing it as we did the last one.
The Chair: Seeing no further discussion, we'll proceed to the vote on the Liberal motion on subsection 10(2). All those in favour? Opposed?
Motion negatived.
Mrs Sullivan: My second amendment is to subsection 10(2).
The Chair: Mrs Sullivan moves that subsection 10(2) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "or prescribed health facility" in the first and second lines.
Mrs Sullivan: We had a lot of discussion with respect to this issue during the course of hearings, and I think it became very clear that the morass of rules that physicians would have to face in implementing this act -- the guidebook would be close to 1,000 pages long if we have different controlled acts requiring rights advice in different settings if determination of incapacity has been made. The confusion is one that's a created confusion and not a necessary confusion.
I used, in the discussions, the example of a pelvic examination, whether it occurs in whatever health setting or at home or in a home care institution, and if I, as the patient, am determined to be incapable of making a decision whether to proceed or not with that treatment, the decision should not be made on the basis of facility. The act is intrusive wherever it occurs and if I'm incapable to make a decision in one location, I am also incapable to make a decision in another location.
Mr Jim Wilson: Speaking to this particular Liberal amendment, I find it passing strange that the Liberal Party would have opposed the previous PC amendment which would have struck out the section, really the offensive section, based upon the same arguments for both subsection 10(2) and subsection 10(3), based upon the same arguments that Mrs Sullivan has just put forward. I make note of that lack in consistency. I do it with respect, but I find it passing strange.
Having said that, our preferences, as members will note with the next amendment coming forward, is to simply strike out this section, to strike out subsection 10(2) so that determination is made not dependent upon the place where that determination is made, but upon the treatment.
Mr Wessenger: We're prepared to accept this amendment because we have no intention of prescribing health facilities.
Mr Jim Wilson: You have no intention of prescribing health facilities, so you're going to delete it anyway.
Mr Wessenger: That's right.
Mr Jim Wilson: Well, there's a powerful amendment.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the Liberal motion on subsection 10(2)? Opposed?
Motion agreed to.
Mr Jim Wilson: Mr Chair, we'll withdraw the next amendment.
The Chair: It was already voted on, Mr Wilson.
Mr Jim Wilson: Was it voted on? It's probably defeated.
The Chair: Next the Liberal motion on subsection 10(3).
Mrs Sullivan: Mr Chairman, you'll be familiar with the gist of this motion.
The Chair: Mrs Sullivan moves that subsection 10(3) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "twelve years" in the third and fourth lines, and substituting "sixteen years."
Mrs Sullivan: The discussion is as it was before.
Mr Wessenger: We'll be opposing this amendment, as before.
The Chair: Seeing no further discussion, all those in favour of the Liberal motion on subsection 10(3)? Opposed?
Motion negatived.
The Chair: Mrs Sullivan moves that subsection 10(3) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "or prescribed health facility" in line 2.
Mrs Sullivan: The argument with respect to this motion is as it was with respect to subsection 10(2).
Mr Wessenger: We'll be accepting this amendment.
Motion agreed to.
The Chair: Next is the Liberal motion on subsections 10(2), (3), (4) and (5), alternate 1.
Mrs Sullivan: Mr Chairman, I hope you'll note the difference from the way it's printed on the agenda. I'm taking out subsection 10(2).
The Chair: Mrs Sullivan moves that subsections 10(3), (4) and (5) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Notice of rights
"(3) If a health practitioner finds that a person who is twelve years of age or more is incapable with respect to a treatment that is a controlled act within the meaning of subsection 27(2) of the Regulated Health Professions Act, 1991, other than a prescribed controlled act, the health practitioner shall ensure that the person is given a written notice (which may be in the prescribed form) indicating that the person is entitled to request a meeting with a rights adviser and is entitled to make an application to the board under section 26."
Mrs Sullivan: Basically, this draws the amendments with respect to the conveyance of rights advice to the patient via a prescribed form from the practitioner. It removes the automatic obligation to notify the rights adviser under clause 10(4)(b). Clause 10(4)(a) would stay because subsection 10(2) remains in.
Furthermore, later on in the amendments as they're proposed, I will be putting forward an amendment that would provide to the Minister of Health the requirements for regulations which would designate the prescribed form of the notification to the person of his or her entitlement to meet with the rights adviser or to make an application to the board.
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Mr Wessenger: We'll be opposing this motion because I believe there's going to be a later motion with respect to 10(3), which we probably will be moving an amendment to, which I think would form the basis of perhaps an acceptable amendment. We're opposing this motion because we want to deal with the PC motion later to be moved.
The Chair: Just for clarification for the members, it appears that the Liberal motion is the alternative 2a. That's the one that was moved.
Further discussion? Seeing no further discussion, all those in favour of the Liberal motion on subsections 10(3), (4) and (5)?
Mrs Sullivan: Mr Chairman, before we take the vote -- I'm sorry; I know you're already in the middle of the vote -- would it be useful to stand this one down as we look at the next section, because I think it does fit with some of the amendments that are coming forward, while we just look at them carefully.
Mr Wessenger: I have no problem standing this down.
The Chair: Do we have unanimous consent to stand this down?
Mrs Sullivan: I think there is an interrelationship between that one and a couple of them that are coming up.
The Chair: Agreed? Thank you. We'll go to the next PC motion on 10(3).
Mr Jim Wilson: I should let members know that I'll be omitting a couple of words from what appears now in written form and that is the requirement of the health practitioner to read and then give written notice. I'll be deleting "read and is then."
The Chair: Mr Jim Wilson moves that subsection 10(3) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Notice of rights
"(3) If a health practitioner finds that a person who is sixteen years of age or more is incapable with respect to a treatment that is a controlled act within the meaning of subsection 27(2) of the Regulated Health Professions Act, 1991, other than a prescribed controlled act, the health practitioner shall ensure that the person is given a written notice (which may be in the prescribed form) indicating that the person is entitled to request a meeting with a rights adviser and is entitled to make an application to the board under section 26."
Mr Jim Wilson: I think the rationale stands as far as we're concerned, but Mr Wessenger wants to make a comment.
Mr Wessenger: I'm wondering if you would put back in the words "read and is then given," as in your original draft.
Mr Jim Wilson: I thought that was somewhat problematic -- I don't mind doing that -- because I thought it was going to be more palatable if I took that out, but if the government wants it --
Mr Wessenger: It would be more agreeable with it in because there is the concern of a person who would not be able to read.
Mr Jim Wilson: Sure. If that's acceptable, I'd like to put that back into the motion, so the motion would appear as written before you.
The Chair: Could you re-read the motion, then, Mr Wilson, please.
Mr Jim Wilson: The whole kit and caboodle?
The Chair: Yes.
Mr Jim Wilson: I move that subsection 10(3) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Notice of rights
"(3) If a health practitioner finds that a person who is sixteen years of age or more is incapable with respect to a treatment that is a controlled act within the meaning of subsection 27(2) of the Regulated Health Professions Act, 1991, other than a prescribed controlled act, the health practitioner shall ensure that the person is read and is then given a written notice (which may be in the prescribed form) indicating that the person is entitled to request a meeting with a rights adviser and is entitled to make an application to the board under section 26."
The Chair: Discussion?
Mr Wessenger moves that PC motion with respect to subsection 10(3) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "sixteen" in the second line and substituting "twelve."
Mr Wessenger: The purpose of the amendment is because it's consistent with all the other sections that rights advice should be at the age of 12.
Mrs Sullivan: The amendment that has been put by the government now more closely accords with alternate 2a, which I put forward. However, I just find it interesting that when we were dealing with the section about how information with respect to the treatment and with respect to the illness would have to be conveyed to a person, the government would not take into account any of the special needs of an individual. Now, when we're in a situation where a person is being given rights advice about appealing capacity, the government has a different standard. The government has a standard that is very different in terms of what the level of understanding and appropriateness of the conveying of information is to a patient about what's wrong with them and how it's going to be fixed than it does about how they can appeal their status of incapacity. There is something wrong here.
Mr Jim Wilson: Dealing with the government's amendment to the PC motion, it comes as no surprise if I indicate that I cannot support the amendment, because it again lowers the age to 12, but I appreciate the small degree of compromise that's been made in this area. I see the point that Mrs Sullivan is making in terms of the inconsistency and perhaps that's something that can be worked out before all is said and done on this legislation.
Mrs Sullivan: Can I just ask a question for clarification? Can a statute provide direction to a physician or a nurse or a dentist as to how information must be conveyed, specifying that it must be read or it must be written, and how does one prescribe a form that is oral?
Mr Wessenger: We're just having some discussion with legal counsel on this motion. I wonder if we might stand it down or recess for three or four minutes. I think counsel would like to make some comments.
Mr Sharpe: The PC motion, it was pointed out to me, deletes in subsection 10(3) "in a place other than a psychiatric facility." We've already got provision for a psychiatric facility in subsection 10(2). Here we're dealing with other sites and controlled acts, so with the other motions having been defeated, perhaps those words should be put back into the motion to make subsections (2) and (3) consistent in the section.
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Mr Jim Wilson: With a large degree of hesitation, I would agree to do that with the motion, so it would be a friendly amendment. Given that all efforts to convince the government of the errors of its ways are failing, I do want to see some sort of compromise in this area. So I'd be prepared to accept that amendment, and I understand the point made by counsel.
The Chair: We would need unanimous consent for this. Do we have unanimous consent? Agreed.
Seeing no further discussion on the amendment, all those in favour of the amendment? Opposed?
Motion agreed to.
The Chair: On the main motion, as amended, further discussion? Seeing no further discussion, on the PC motion on subsection 10(3), as amended, all those in favour? Opposed?
Motion agreed to.
The Chair: On the Liberal motion, the replacement, subsection 10(4).
Mrs Sullivan moves that subsection 10(4) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Notice to rights adviser
"(4) A health practitioner who finds that a person who is twelve years of age or more is incapable with respect to a treatment shall ensure that a rights adviser is notified of the finding if the treatment is a controlled act within the meaning of subsection 27(2) of the Regulated Health Professions Act, 1991, other than a prescribed controlled act, and the person requests a meeting with a rights adviser."
Mrs Sullivan: I think this is self-evident. It provides the direction to the health practitioner to give information to the patient when the patient wants to meet with a rights adviser, pursuant to the previous section. It takes out the confusion we've had earlier with the bill with respect to prescribed facilities, and it is rational.
Mr Wessenger: I think I'm going to ask counsel to ask for another friendly amendment here, if I might have counsel explain.
Mr Sharpe: It seems that clause 10(4)(a) would still have to remain, since subsection 10(2) remains. If the finding is made in a psychiatric facility -- and then one might want to take out "or prescribed health facility," since those deletions were made earlier -- then one would still have to notify the rights adviser to go into the psychiatric hospital. So this motion might be an amendment to replace (b).
Mrs Sullivan: I disagree with that. I think the rights adviser is notified if the person requests a meeting with the rights adviser, no matter where the request is made.
Mr Sharpe: Can I speak to that?
Mr Wessenger: Yes, certainly.
Mr Sharpe: The intent of the current practice, as I understand it, was that if a person in a psychiatric facility, a patient, is found to be incapable of making a treatment decision, then a rights adviser would visit him and tell him what his rights are, whether he requests it or not. I believe that's current practice that's being codified in 10(4)(a). If (a) were deleted, this would change the current practice so that psychiatric patients found to be incapable by a practitioner would not have an automatic rights adviser visit any longer. It would only be where they requested it, which, as I understand it, is not the present practice.
Mr Wessenger: Perhaps we might ask the other counsel to clarify. Ms McKague?
Ms McKague: Certainly the current practice -- and I believe it's actually in the act; I'd have to check -- is that on any declaration of incompetency to consent to treatment, or any other declaration of incompetency, for that matter, there is an automatic rights adviser visit in psychiatric facilities.
Mrs Sullivan: It's not statutory. It may be the practice, but it's not statutory.
Ms McKague: I believe there's a requirement for notification, and the practice is certainly that there is an automatic visit.
Mrs Sullivan: I think there was nothing that would be in conflict between the amendment I put forward, the Mental Health Act requirements and the current practice. There's no inconsistency.
Mr Wessenger: I might have counsel reply.
Mr Sharpe: I believe that's correct; it wouldn't change the current practice or the present provisions under the Mental Health Act. I believe that all (a) was doing was to codify existing practice and to create a statutory obligation for the rights adviser to visit in a psychiatric facility.
Mrs Sullivan: I'm interested in this, and I frankly don't want to delay this for an awfully long period, but it seems to me that the Psychiatric Patient Advocate Office is in fact doing a different job than simply providing rights advice. We are talking here about a rights adviser who is providing rights advice with respect to an appeal of a capacity determination to the Consent and Capacity Review Board. The PPAO, working under the minister's program, has a different function.
Mr Winninger: Just to take the London Psychiatric Hospital as an example, there's a rights adviser there as well as a patient advocate. The rights adviser merely comes in and tells the patient that he has the right to a review board and a right to be represented and a right to apply for legal aid, but there's a distinct individual there called the patient advocate who does advocacy proper.
You say that the role of the rights adviser goes beyond that contemplated here. I don't really follow your argument.
Mrs Sullivan: No, I said the PPAO. The rights adviser in a psychiatric institution is legal aid, right?
Mr Wessenger: I see maybe counsel would like to make --
Ms McKague: Actually, I want to make an addition to my previous response. Although the automatic visit is not in the statute, it is in fact in the regulations. Form 33 under the Mental Health Act, which is prescribed by the regulations and which is the notification to the patient of his or her incompetency to consent to treatment, says in part, "After you receive this notice, a person called a rights adviser will be in contact with you to inform you as to your rights and help you in applying for a hearing if that is what you wish to do."
Mrs Sullivan: I think nothing would change in respect to that unless there is a comparable change made to that particular section in Bill 110.
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The Chair: Further? Mr Wilson.
Mr Wessenger: I think perhaps we'd better stand this one down so counsel can clarify it. I think it's probably best in the circumstances.
Mr Jim Wilson: I'd agree, Mr Chairman. While they're at it, can they reconsider the age?
The Chair: Do we have unanimous consent to stand this Liberal motion on subsection 10(4) down? Agreed? Stand it down.
Liberal motion on subsection 10(4).
Mrs Sullivan: Yes, there's another one.
The Chair: Mrs Sullivan moves that subsection 10(4) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "twelve years" in the second line and substituting "sixteen years."
Discussion?
Interjection: Same arguments.
The Chair: Same arguments?
Interjection: Yes.
The Chair: Seeing no further discussion, all those in favour of the Liberal motion on subsection 10(4)? Opposed?
Motion negatived.
The Chair: PC motion on 10(4).
Mr Jim Wilson: Mr Chairman, for the record, I will let this motion stand even though it's identical to the Liberal motion that's just been stood down in all terms except the minimum age requirement.
The Chair: Mr Wilson moves that subsection 10(4) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Notice to rights adviser
"(4) A health practitioner who finds that a person who is sixteen years of age or more is incapable with respect to a treatment shall ensure that a rights adviser is notified of the finding if the treatment is a controlled act within the meaning of subsection 27(2) of the Regulated Health Professions Act, 1991, other than a prescribed controlled act, and the person requests a meeting with a rights adviser."
Mr Jim Wilson: Mr Chairman, you'll note in my reading that I've taken out the words "objects to the treatment or." I note that the Ontario Dental Association wanted a clarification of that terminology and I think it's best to just drop that terminology. Having said all that, I don't expect this amendment is going very far.
The Chair: Thank you, Mr Wilson. Discussion.
Mr Wessenger: We'll be opposing, again because of the age.
The Chair: Further discussion?
Mr Jim Wilson: I'd like a recorded vote, Mr Chairman.
The Chair: Seeing no further discussion, we'll proceed to the recorded vote. All those in favour of the PC motion on subsection 10(4)?
The committee divided on Mr Jim Wilson's motion, which was negatived on the following vote:
Ayes--3
Curling, Sullivan, Wilson (Simcoe West).
Nays--6
Carter, Malkowski, Morrow, Sutherland, Wessenger, Winninger.
The Chair: Thank you. We'll now proceed to a government motion on subsection 10(6).
Mr Wessenger moves that subsection 10(6) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "who has been found incapable" in the second line.
Mr Wessenger: I think it's being deleted because it didn't make any sense when the person is unconscious; that's right.
Mr Jim Wilson: That line of reasoning has never stopped the government before.
Mrs Sullivan: Did the parliamentary assistant change the numbering as well, or is that done automatically? The numbering would, I think, become subsections (1), (2) and (3). Is that done automatically?
The Chair: Renumbering will be done in the reprint.
Mrs Sullivan: We will support this.
The Chair: Thank you. Seeing no further discussion, all those in favour of the government motion on subsection 10(6)? Opposed?
Motion agreed to.
The Chair: Next, the Liberal motion on subsection 10(6).
Mrs Sullivan: Mr Chairman, as a result of the government motion and the question of renumbering, my motion is redundant, so I won't put it forward.
The Chair: Thank you. Next, a Liberal motion on subsections 10(7), (8), (9), (10), (11) and (12).
Mrs Sullivan moves that subsections 10(7), (8), (9), (10), (11) and (12) of the bill be struck out, and the following substituted:
"(7) If a person who has been found incapable with respect to a treatment by a health practitioner indicates to the health practitioner a wish to make an application to the board under section 26, the health practitioner shall ensure that the treatment is not administered until,
"(a) seven days have elapsed since the person indicated the wish without an application being made to the board under section 26; or
"(b) the board gives a decision in the matter and,
"(i) the appeal period elapses without an appeal being commenced, or "(ii) an appeal of the board's decision is finally disposed of."
Mrs Sullivan: This amendment comes forward as the result of changes we've made to earlier sections, which will not require an automatic rights adviser involvement but in fact a notification that, where the patient wants to involve the rights adviser in the course of making an appeal, this would be the appropriate method of doing so and that the treatment cannot continue until after the board has made its decision.
Mr Wessenger: We'll be opposing the section because, in effect, taken in total, I think it would really take away the rights advice from the individual.
Mr Jim Wilson: I would agree somewhat with the parliamentary assistant, Mr Wessenger. To achieve what I think Mrs Sullivan is trying to achieve with this amendment, I don't think it's necessary to gut all the other safeguards and procedures in this section. On those bases, unless convinced otherwise, I'll be opposing this amendment.
The Chair: Further discussion? Seeing no further discussion, all those in favour of the Liberal motion on subsections 10(7), 10(8), 10(9), 10(10), 10(11) and 10(12)? Opposed?
Motion negatived.
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The Chair: Now we'll proceed to the PC motion on subsection 10(11).
Mr Jim Wilson moves that subsection 10(11) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out the portion before clause (a) and substituting the following:
"Treatment if rights adviser notified
"(11) If a rights adviser is required to be notified under this section, the treatment shall not be administered until."
Mr Jim Wilson: As members know, the current subsection 10(11) requires a health practitioner who has made a determination of incapacity in circumstances set out in subsection 10(2) or subsection 10(3) to ensure that treatment is not administered until the criteria set out in subsection 10(11) are satisfied.
We feel it may be inappropriate where the health practitioner is no longer involved in the patient's care to require such practitioner to be responsible for the supervision of potential treatment given by other practitioners. In other words, we're worried that with the current wording as proposed by the government, there's quite a liability to ensure notification of the rights adviser by sort of the first practitioner who may make the determination of capacity or incapacity, and that other people may be involved. In fact we had one witness, I recall, bring us through a situation in an emergency room where some 34 individuals were involved with treating a particular patient.
I think members understand the gist of this amendment, and there's a following amendment to bring the bill in line with that reasoning.
Mr Wessenger: We'll be opposing the motion, because it would appear to me that the effect of it is to take away the obligation right now on the health practitioner who is proposing the treatment and extend it right along to all the practitioners who deal with the matter. This way it clearly puts the onus on the practitioner who deals with the patient and proposes the treatment.
Mr Jim Wilson: That's quite a responsibility to put on the, for lack of better wording, sort of first practitioner who proposes the initial treatment. Other teams get involved here, and a lot of other people get involved. Is it not feasible that the practitioner who proposes the treatment may not even be around when that treatment takes place, and therefore has the liability to ensure notification of the rights adviser but may not be there to do it?
Mr Wessenger: Perhaps I could just ask legal counsel to clarify, because I asked the same question concerning the matter in the sense that I wanted to be assured that if the health practitioner who ordered and proposed the treatment, once he had given the instructions properly, would not be held liable for some deviation from that. Counsel, I think, indicated that was the case. Perhaps counsel could just clarify that for you, because I asked the same question.
Mr Sharpe: Okay. The provision in the bill, of course, indicates that as a continuum, the health practitioner who is required to ensure that the rights advice be provided -- and there are some amendments dealing with the form in which that's done -- shall also ensure that the treatment not be administered. The thought here is that it's a continuum of responsibility. This is the person who set out the treatment plan.
It's true that a technician in a part of the hospital where they're conducting some kind of procedure not requiring that the doctor be there will not really know whether or not proper rights advice has been given; they're there just to do the procedure. But it's the doctor who has proposed the treatment who should follow through, contact the technician and let him or her know that the person has asked to meet with a rights adviser.
In other words, how would some technician necessarily know whether or not he or she is giving the treatment in defiance of the request by a patient to meet with a rights adviser? The doctor would know that, because he or she is the one who provided the rights advice and then received the response from the patient perhaps saying: "No, I don't want to proceed. I want to talk to a rights adviser to discuss your finding that I'm not capable of making my own choices on this." The technician might have no way of knowing that this discussion had taken place, and under the proposed amendment might then become liable for administering the treatment without knowing whether or not the person has asked for a rights adviser.
Mr Jim Wilson: It just seemed to us that it was a question of fairness. I understand your continuum argument, but it just seems to be another burden to place upon the health care practitioner proposing the treatment. I can see it's problematic in terms of, where else do you put the responsibility?
I just have a question in this area. Do we assume, then, that the fact that the person has asked to see a rights adviser is clearly indicated on the chart or the records, and don't the records usually go with the patient down to X-ray or down to whatever team he or she sees next?
The Chair: Please respond.
Mr Sharpe: If the physician's in the hospital, on staff, and the patient is a hospital patient. But what if the physician's in private practice and has referred the patient into the hospital and it's in his or her own chart in the office? The technician in the hospital or in some private radiology clinic, for example, might or might not have knowledge that a rights adviser is involved. All the patient has is a requisition form. He is with a family member and they're taking the form to some clinic or to the hospital radiology wing, but the fact that he has told the physician that he wants a rights adviser may get lost in the process. So this is just keeping the responsibility on the initial provider who is proposing the treatment and giving the rights advice.
Mrs Sullivan: Isn't that very point the intent of the Conservative amendment, which would say that the practitioner, rather than ensuring that treatment isn't provided, which puts an additional obligation on the practitioner, perhaps should make his best efforts to ensure the treatment's not given? Given the multiplicity of health care providers in association with the care, say, of a complicated case, the obligation on the practitioner to ensure that the treatment doesn't take place at all, in any place, by any other practitioner until the rights adviser gets back to the original person with information, I just think imposes an enormous liability on the first practitioner, who may be the family doc. I wonder if the government would consider a little redraft there if Mr Wilson's wording doesn't quite work. I think something else has to work.
Mr Jim Wilson: I appreciate Mrs Sullivan's support. It just seems to me that in a real-life situation, it is almost impossible to put this much responsibility on the first practitioner, and we heard that in testimony. So I would be interested in seeing whether there is any flexibility there on behalf of the government.
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Mr Wessenger: I think we might be able to make a quick amendment on this. We have some advice from counsel with respect to an amendment that might satisfy Mr Wilson. It reads:
"(11) A health practitioner who is required to ensure that a rights adviser be notified shall take reasonable steps to ensure that the treatment is not administered until."
Mr Jim Wilson: That's acceptable.
The Chair: Could we have that amendment in writing, please?
Mr Wessenger: Doug will do it for us. Could we stand it down until legislative counsel has --
The Chair: Stand this down until we get it redrafted? Agreed? Agreed.
Mr Jim Wilson: Mr Chairman, I think subsections 10(10) and 10(12) might have to be looked at also. Let me just review that.
Mr Wessenger: We can do the same thing.
Mr Jim Wilson: Subsections 10(10) and 10(12) also?
Mr Wessenger: Yes.
The Chair: Maybe we could get it redrafted before you introduce it.
Mr Jim Wilson: That would be rather a commonsense way to go about things, wouldn't it?
The Chair: Thank you, Mr Wilson. You're so accommodating today. It's a pleasure to do business with you.
Mr Jim Wilson: It's all under protest, of course, you understand. It's taking a lot of bad things and trying to shine some light on them.
The Chair: Okay. Maybe we could proceed to the Liberal motion on subsection 10(14).
Mrs Sullivan: I think there are some other motions before that.
Mr Jim Wilson: They're going to look at subsection 10(12), I think.
Mrs Sullivan: All of subsection 10(12), including clause 10(12)(c)?
Mr Jim Wilson: Clause 10(11)(c).
Mr Wessenger: I think we can stand that down.
Mrs Sullivan: Oh, I wanted to vote for that one.
Mr Jim Wilson: I like it too.
Mr Wessenger: There's just some language that evidently has to be tidied up by legislative counsel.
Mrs Sullivan: Clause 10(11)(c).
Mr Wessenger: We have your clause 10(12)(a). We can do clause 10(12)(a)?
Mrs Sullivan: They're the same.
The Chair: Mr Wessenger moves that clause 10(12)(a) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "seven days" in the first line and substituting "forty-eight hours."
That's government motion on clause 10(12)(a) moved by Mr Wessenger. Comments?
Mr Wessenger: I would suggest that this makes the process much speedier, and I think all members of the committee hopefully can support this amendment.
Mrs Sullivan: We support this amendment, and I believe the similar amendment that's proposed for clause 10(11)(c) can also go ahead because the redrafting of the other section doesn't affect this particular subsection.
Mr Jim Wilson: On behalf of my caucus, I will be supporting this amendment and the clause 10(11)(c) amendment.
The Chair: Further comments? We'll proceed to the vote on the government motion on clause 10(12)(a). All those in favour? Opposed?
Motion agreed to.
The Chair: Mr Wessenger moves that clause 10(11)(c) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "seven days" in the first line and substituting "forty-eight hours."
Discussion? Seeing none, we'll proceed to the vote. All those in favour of the government motion on clause 10(11)(c)? Opposed?
Motion agreed to.
The Chair: The government reprint on subsection 11(2). No, sorry. The Liberal motion on subsection 10(14).
Mrs Sullivan moves that section 10 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:
"(14) Nothing in this section affects the law with respect to rights advice under the Mental Health Act."
Mrs Sullivan: This section was included in relationship to the very issues that we were discussing earlier about where and how rights advice is provided under the Mental Health Act, to simplify this act in terms of the two facilities, or the facility and the other than facility, and to ensure that the Mental Health Act isn't substantially changed from what has been not only the law but the practice.
I think that, given the standing down of previous amendments with respect to subsection 10(4), where we're in fact discussing the precise issue, I'll stand this one down too for consideration with that one.
The Chair: Do we have unanimous consent to stand this one down? Agreed.
Mr Wessenger: With respect to the Liberal motion, we'll be opposing it now. We have two further amendments which we will be submitting, assuming the Liberal motion is defeated, taking out the words "or prescribed health facility" and striking out "objects to the treatment or." I just thought I'd indicate what our intentions were.
The Chair: Excuse me, Mr Wessenger. You've lost me. What motion are we discussing here?
Mr Wessenger: The Liberal motion to subsection 10(4) is before the committee, as I understand it, and I just wanted to indicate at this time --
The Chair: You mean the 10(4) that was stood down?
Mr Wessenger: Yes, it was stood down; that's right. I thought we should go back to 10(4), which was stood down.
Mr Winninger: Come on, Paul. I thought we were on 11(2).
Mr Wessenger: No, we're not to 11 yet.
The Chair: We go back to the Liberal replacement motion on subsection 10(4).
Mr Wessenger: What I thought I would indicate is that the amendments that we will be moving with respect to subsection 10(4), assuming the Liberal motion is not passed, are the deletion of "or prescribed health facility" and the deletion of the term "objects to the treatment or."
Mrs Sullivan: I have neither of those things in my motion.
The Chair: I can't find it in there either.
Mr Wessenger: No, they're not in the motion. Perhaps I should indicate that the purpose of our amendments is to preserve, in paragraph 10(4)(a), "the finding is made in a psychiatric facility."
Mrs Sullivan: I thought we stood it down so it could be printed up.
Interjection: Yes, we amended it.
Mrs Sullivan: So let's stand it down again.
Interjections.
Mrs Sullivan: We need it printed.
The Chair: Quite appropriately, right now, I think this would the time to have a recess, to go and have our meal, and then come back and sort this out. This committee will stand recessed for 15 minutes.
The committee recessed at 1820.
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The Chair: I call this meeting back to order. I believe we'll be going back to the Liberal replacement motion on subsection 10(4) that was moved by Mrs Sullivan. Mr Wessenger.
Mr Wessenger: Yes, we're going back to the amendment to subsection 10(4). We will be opposing this amendment.
Ms Zanana L. Akande (St Andrew-St Patrick): Which one is this?
The Chair: It's the Liberal replacement motion on subsection 10(4) that was moved by Mrs Sullivan, notice to rights adviser. Any discussion?
Mr Jim Wilson: The government has indicated it's opposing Mrs Sullivan's motion. We're voting on that?
The Chair: It's my understanding they're opposing this motion that was stood down in favour of another motion they wish to introduce. Discussion? Seeing no discussion, we'll proceed to the vote. All those in favour of the Liberal motion on subsection 10(4)? Opposed?
Motion negatived.
The Chair: We'll move on to the government motion on clause 10(4)(a).
Mr Wessenger moves that clause 10(4)(a) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "or prescribed health facility" in the second line.
Motion agreed to.
The Chair: Next on a government motion on clause 10(4)(b).
Mr Wessenger moves that clause 10(4)(b) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "objects to the treatment or" in the eighth line.
Motion agreed to.
Mr Wessenger: I believe we're waiting for some amendments that are being photocopied by the clerk in respect to subsections 10(11) and 10(12).
Mr Mark Morrow (Wentworth East): Mr Chair, while we're waiting for that, why don't we move to subsection 11(2)?
Mr Wessenger: Is there any problem with that? No? We could move to 11(2).
The Chair: One moment, please. I believe we're on a Liberal amendment on subsection 10(14).
Mr Wessenger: That was stood down, if I remember.
The Chair: Was that stood down?
Mrs Sullivan: I think that's been dealt with as a result of the last series of amendments. If I did read it into the record, I withdraw it.
The Chair: Thank you.
Mr Wessenger: We can do 10(11) and 10(12) then. I have them back now. So we'll go back to 10(11) and (12).
The Chair: On the PC motion?
Mr Wessenger: No, on a government motion, 10(11) and (12). Then we can ask the PCs to move 10(11) and (12), if they want to do it.
The Chair: Okay. It's my understanding that we have new motions to replace these. Is that correct, Mr Wessenger?
Mr Wessenger: Correct.
The Chair: We have new motions to replace the PC motions 10(11) and 10(12)?
Mr Wessenger: Yes, I believe the PC might have to remove these.
Mr Jim Wilson: Do you want to see the new motions?
The Chair: We'll let them stand. All right.
Mr Wessenger: Until they move their motion, I think that's fair enough.
The Chair: Okay. We'll go to a government motion on 10(11).
Mr Wessenger moves that subsection 10(11) of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "shall" on the third line "take reasonable steps to."
Mrs Sullivan: Agreed.
Mr Wessenger: Agreed.
The Chair: Wait. Mr Wilson just received them.
Mr Jim Wilson: I certainly agree with this amendment and commend the government for showing some flexibility in this section.
Mr Winninger: Mr Chair, I wonder if we could get the amendment before the vote's called.
The Chair: Oh. My apologies. Has everybody received the government motion on subsection 10(11)? Shall we proceed to the vote? Agreed?
Motion agreed to.
The Chair: Mr Wessenger moves that subsection 10(12) of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "shall" in the seventh line "take reasonable steps to."
Discussion? Agreed?
Motion agreed to.
Mr Jim Wilson: Mr Chairman, would it be prudent to officially withdraw my amendments?
The Chair: You'll withdraw the PC motion on subsection 10(11) and subsection 10(12)? Thank you, Mr Wilson.
Mr Wessenger: I wonder if we might have unanimous consent, as we did earlier, to a deletion in 10(4)(b)? We found another "or prescribed health facility," and I ask that it be deleted. Unanimously carried? Good.
The Chair: Just one further question of the committee. On the Liberal amendment on 10(2), (3), (4) and (5), the alternate 2a, do we have anything on that? Was that reworked?
Mrs Sullivan: It passed, didn't it?
The Chair: No, that was stood down.
Mr Morrow: On a point of clarification, Mr Chair: Which motion are you referring to?
The Chair: Liberal amendment 10(2), (3), (4) and (5), and it was alternate 2a. I have it indicated that it was stood down. Has that one been reworked?
Mrs Sullivan: I like it the way it is.
The Chair: Okay, thank you. We'll carry on, then. Next we'll proceed to the government motion on subsection 11(2).
Mr Wessenger moves that subsection 11(2) of the bill, as reprinted to show the amendments proposed by the minister, be struck out.
Mr Wessenger: The reason for this is that the mandatory notice to the public guardian and trustee about long-term incapacity no longer serves its former purpose. Bill 108 has been amended to reduce the need for a court-appointed guardianship by providing for a diminished-capacity power of attorney for personal care and allowing for attorneys to act without requiring validation in all cases.
Motion agreed to.
Mrs Sullivan: Mr Chair, my motion is precisely the same as that which the government has just put forward.
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The Chair: On the government reprint 11(3). Discussion? No discussion. Proceed to the vote. All those in favour? Carried.
Next is a Liberal motion on section 12.
Mrs Sullivan moves that section 12 of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "been" in the seventh line "registered or".
Mrs Sullivan: This amendment brings this section into line with changes made to Bill 108.
Mr Wessenger: I'm going to ask staff to comment on this one.
Ms Auksi: I think there was some misunderstanding with some of the groups as to the significance of saying "registered" as opposed to having expedited validation.
In Bill 108 there's a new procedure allowed for getting a power of attorney to take effect without all the usual safeguards and I guess that's called the expedited validation process, the so-called Ulysses contract type of quick coming into effect of a power of attorney, where people had said in advance, for example, that they wanted to be admitted to hospital when incapable, even if objecting.
The thing is that the expedited validation is still covered off by the term "validated power of attorney." If one merely says a registered power of attorney, the step that is missed that's essential is the assessment of capacity. The expedited validation only requires one assessment, as opposed to two assessments for the usual validation process. So it's already a kind of shorter version of coming into effect.
If one didn't require any assessment at all and if one had just simply registered that one wanted this to happen, there would be no way to say with due rights protections that this person had been found incapable and that there was now no question about it. Have I answered your concern?
Mrs Sullivan: No, because in fact 11(1) tells us that the health practitioner has just found the person incapable.
Ms Auksi: Yes. The problem with a finding of incapacity by the health practitioner is that it's by someone who isn't necessarily expert in a finding of incapacity. We have to acknowledge that while people may in some cases be expert, many will not be and that's the reason for allowing there to be a review.
The assessors under the Substitute Decisions Act, on the other hand, are people who will be specially designated and trained in some way and will have a certain expertise that not every health practitioner will have. So the right of review is not an every instance thing. It's a right of review if you make an application, but it's something that's up to the individual to decide whether to exercise or not.
Mrs Sullivan: I put it to you that if the health practitioner who is required in virtually every other section of this act with respect to incapable people is himself or herself incapable of making an assessment, this act is meaningless.
Mr Wessenger: We'll be opposing this amendment for the reason that sections 10 and 11 should not be excluded except in those circumstances where there is either a guardian appointed or a validated power of attorney. Of course, it's been indicated that there are two ways a power of attorney can be validated: one, with the longer process or, two, the situation where an attorney is registered and then an assessor determines that incapacity. If we accepted the amendment, in effect we would have the rights advice being completely overridden just by the simple fact of a person executing a power of attorney.
Mrs Sullivan: The execution of the power of attorney is an indication of the wishes of the person while capable. That's the entire authority and concept of being able to give a power of attorney. One makes decisions while capable with respect to the person who will be able, under certain circumstances, to exercise certain decisions and the nature of the decisions that person will be able to execute.
This section says a health practitioner who finds that a person who is 16 years of age or more is incapable may notify the public guardian and trustee of that fact and give notice to the person, but this requirement of the practitioner doesn't apply if the person has a guardian or a power of attorney for personal care. The person, himself or herself, has already determined what and who are in the power of attorney. If the person has in fact executed a power of attorney and that power of attorney has been registered, why is it also necessary for a health practitioner to advise the PGT of that process? The person, himself or herself, has made the decision.
Again, this is a lot of bureaucratic silliness and an extra obligation on the health care practitioner that isn't necessary when the person either has a guardian because that person has no one else, or has made a decision about whom he or she will have.
Mr Wessenger: I will respond, and perhaps Mr Winninger may want to make some comments on this with respect to his legislation as well.
Mrs Sullivan: He agrees with me.
Mr Winninger: No, quite the contrary.
Mr Wessenger: The fact that a person makes a power of attorney when competent, setting out certain requirements of when the power of attorney may come into effect, to say that power of attorney can come into effect contrary to the provisions of that power of attorney seems somewhat strange to me. The power of attorney could say, for instance, that if it is determined that I am found incapable by psychiatrist X or psychologist X -- I don't know; Mr Winninger is more familiar with the act -- that would be the determination. In fact, there has to be an assessment under the act to determine if a person is incapable. To give the authority to any health practitioner to make the decision that a person is incapable with no right of appeal defeats the whole purpose of the provision of rights.
I don't know what would be the situation in the event that the power of attorney provided that a particular health practitioner could make an assessment, who had the capacity -- shall we say a psychiatrist. Could that health practitioner have both roles, for instance, of being assessor and practitioner in the circumstance? Mr Winninger should comment on this.
Mr Winninger: I don't know that I can add any clarity to what Mr Wessenger has already said. I would be particularly concerned if we short-circuited the process and excluded rights advice under validation.
Mrs Sullivan: Are you talking about the same amendment I am talking about?
Mr Winninger: Quite frankly, I was having some difficulty following a lot of your statements in the last five minutes. I'm looking at an amendment to section 12. You want to add the words "registered or." Mr Wessenger has pointed out quite correctly that if you allow "registered" to go in, you could bypass the provision of rights advice to the vulnerable individual. That concerns me. The inclusion of the word "validated" is certainly sufficient to encompass the situations that section 12 contemplates. I'm not sure how "registered or" will add anything to that section, but it will certainly preclude rights advice in certain situations, which is certainly not the intent of our bill.
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Mrs Sullivan: It reflects the capable will of the person involved.
Mr Winninger: If I may, Mr Chair, the person involved executes a power of attorney for personal caring, saying, "If I become incapable, I wish so-and-so to make my personal care decisions for me." That's one point in time. Down the road at another point in time, there has to be a determination whether that person's incapable or not. That's where the assessor comes in, and prior to the assessment, the rights advice comes in.
If you just say that, upon registration, the power of attorney automatically takes effect, you are dispensing with a lot of safeguards we felt it was prudent to include, because decisions can be made on behalf of a vulnerable individual that could be extremely intrusive on that person's autonomy.
If I'm misreading what you're suggesting, let me know, but I think I do understand the implications of your amendment. Quite frankly, I don't find it that appealing.
Mr Jim Wilson: I think where the honourable members are at loggerheads is in coming at this from a couple of different directions.
The way I understand Mrs Sullivan's argument makes sense in the context that someone has drawn up a power of attorney and registered it. They are, in essence, waiving their right to rights advice, because they were fully cognizant of that when having the power of attorney drawn up -- I assume that is what Mrs Sullivan would assume -- knowing that at some point they would be assessed as to their capacity; and because they know what's in their power of attorney, they don't need any more rights advice. I think that's the point.
Mrs Sullivan: They've made the decision.
Mr Jim Wilson: Whereas the government seems to want to ensure there's an extra safeguard there in terms of rights advice. I just think of my own life in drawing up a power of attorney. The whole purpose of doing it would be so that I would have the ability, while I was capable, to express how I want to be treated when I'm deemed incapable. I probably wouldn't need rights advice.
The government wants to consider the amendment in light of the fact that it may save resources. Why revisit people who have already taken decisions?
The Chair: Further comments?
Mr Winninger: I should just add, upon looking again at the actual text of section 50 of Bill 108, that it's not just rights advice; it's advocacy.
Mr Jim Wilson: Yes. So how do you get these people out of your life? You draw up a power of attorney. Yet you people say, on behalf of the state, "They've got to come in anyway." So why do you go through all this when you're capable?
Mr Winninger: To provide the appropriate safeguards, to ensure that when you're taking away --
Mr Jim Wilson: Maybe people don't want your safeguards because they don't see the world the way you see the world. I certainly don't want them. Society's functioned quite well, with a few exceptions, and it's the exceptions that this act should deal with.
Mr Winninger: We see the world differently. I agree on that. That's why you're there and I'm here.
Mr Jim Wilson: It's hard to argue that one, except that they didn't know you saw the world the way you see it when they voted.
Mr Morrow: Yes, they did.
The Chair: Further comments? Seeing no further comments, we'll proceed to the vote. All those in favour of the Liberal motion on section 12? All those opposed?
Motion negatived.
The Chair: PC motion on subsection 13(2.1).
Mr Jim Wilson moves that section 13 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:
"Unwritten wishes
"(2.1) Wishes that are not expressed in written form shall have effect only if they are expressed directly to,
"(a) the person authorized to give or refuse consent to the treatment; or
"(b) the health practitioner who proposes treatment."
Mr Jim Wilson: We think this is a very commonsense approach in dealing with this. I remind members that this amendment's been recommended by the Ontario Medical Association, the Ontario Nursing Home Association, the Ontario College of Nurses, the Alzheimer Association of Ontario, the College of Physicians and Surgeons, the Ontario Friends of Schizophrenics and the Registered Nurses' Association of Ontario. During the dinner break that's all I was able to dig up, but I'm sure there's more support out there.
It is self-explanatory, and I think it ensures that there's a direct communication of these unwritten wishes and that it tries to foresee the fact that there may be confusion out there, and we're trying to limit the confusion as best we can.
Mr Wessenger: We'll be opposing this motion. I might perhaps give the example of where it would be an unfortunate amendment in the sense that there could be instructions given by a brother to another brother, and that brother then communicates those instructions to the spouse. The spouse would not be listened to because the spouse had not directly heard the wishes. It would exclude fairly good and direct evidence with respect to the expressed wishes of an individual, and we don't want to restrict that.
Mr Jim Wilson: How can you be sure though, under that scenario, that -- the more people involved, the less likelihood of the accuracy of the expressed wishes of the individual, I would think. You've played that game where you go around the room and start with one sentence and see how it turns out after it's gone around a few times.
Mr Wessenger: If I might just respond, I think in practicality it's going to be the substitute who is probably giving the evidence, but certainly the substitute should be able to rely on information that the substitute himself or herself considers reliable. The practicality of it is that if the substitute didn't think the wishes were valid, he or she wouldn't communicate them. It's going to be the substitute expressing them, if I'm correct.
Mrs Sullivan: I think what this amendment is driving at is the authenticity of wishes around which there's no proof that the wishes were given. The third-person wish, which may not reflect the wish of the individual, or the third person expressing the wish, as he or she understood it, to the substitute decision-maker, in fact isn't the line of authority for the substitute decision-maker who is authorized in the substitute hierarchy to take account of.
The person who is authorized to give or refuse consent in fact has an obligation, as we know, to act if he knows of a wish that the person has expressed, and if he doesn't know of a wish the person expressed, to act in the person's best interests. A third or fourth party coming to the substitute decision-maker with an expression of a wish as information, in my view, should never be taken as direction by the substitute decision-maker.
I'll be supporting this amendment. I think it's reasonable. I think it provides a responsibility on the substitute decision-maker to know and understand and convey the wishes of the person for whom he's making a substitute decision. It conveys an authority and a responsibility on the health practitioner, to whom in fact many people convey their wishes and intentions, to act on direct information that comes from that person who is affected. If there is no wish they have knowledge of, then they are entitled to act in the person's best interests. I think this is a useful amendment and an appropriate one.
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Mr Jim Wilson: I'm just wondering, in terms of the liability here, if you're getting third- and fourth-hand wishes, as it were, first of all, the health practitioner has to act on those wishes. I think it puts them in a rather precarious position.
Secondly, if you got a substitute decision-maker when you were capable, set up a power of attorney, did a number of other things the legislation allows you to do -- if, for instance, you made those arrangements. Even if you didn't, in both cases -- the second case being you would assume that the substitute decision-maker was someone close to the individual -- I would think you would not tell your brother, who you know is not your substitute decision-maker. You would tell your spouse your most recent wishes and therefore we'd have your most recent wishes, not the brother who comes in from Calgary -- you live in Toronto -- and he says, "Three months ago Jim said this to me and I really believe that's his most recent wish or strongest wish, or whatever," I would think that if the spouse concurred with that, you would find the spouse saying, "Yes, I think that is my husband's strongest or most recent wish," and therefore would conform to this amendment.
I think it's better to err on the side of getting the most accurate wish possible rather than this chain of wishes that may or may not reflect the individual's wish. I would want that. I come from a large family. Goodness knows how many opinions you're going to get on my most recent wishes, and I talk to them, being their member, every day. Unless they write down what hour I've talked to some of these people, I'm sure in my dying moments -- because I'm a bit like the Prime Minister in that I love to use the telephone -- they're going to have to compare notes. It should be the person closest who is going to be, I would think, the substitute decision-maker, the spouse. It gets the health practitioner out of a rather precarious situation, I would think.
Mr Morrow: You did, didn't you? I thought you said you were like the Prime Minister.
Mr Jim Wilson: I was just trying to --
Mr Wessenger: First of all, with respect to the substitute giving instructions to the health practitioner, there is section 25, which provides that a person who gives or refuses consent to treatment on another person's behalf acting in good faith is not liable. The only test is good faith with respect to the substitute who makes the decision, so the substitute is really going to determine how to interpret the wishes of the individual, and as long as he or she acts in good faith, there's no liability on the substitute. In addition, there is the provision with respect to the health practitioner, the override provision with respect to wishes, where they don't believe they're reliable.
Again, I believe they're excused from liability in the case of good faith or -- what is it in that one? -- unreasonable grounds. That's right, there's an inclusion on the health practitioner on reasonable grounds.
Mr Jim Wilson: I understand all that. I read the act too, more than once. This attempts to narrow it down. I don't know why you wouldn't want to be a little more specific when the people who have to make this act work, all those organizations, very much want this type of safeguard. I just find it mind-boggling that you wouldn't agree to this amendment.
Mr Winninger: I don't want to muddy the waters here, but let's say there was a situation where a parent was in extremis and the son and daughter attend upon the health care practitioner. The daughter may believe in euthanasia and declares her parent told her that he wanted all life support systems to be withdrawn, yet the son says precisely the opposite, that his parent told him that he wanted them kept on. What's a health care practitioner in a situation like that going to do? I'm looking for some clarification from Mr Wessenger on that.
Mr Wessenger: I'm just getting advice from legal counsel here. I think for clarity's purpose, there's no obligation on the health practitioner to follow the wishes. The obligation is to follow the instructions of the substitute. It's the substitute's obligation to determine the wishes, not the health practitioner's.
Mr Jim Wilson: My expression of that was not clear. I understand that. We're just trying to make sure that the person determining the wishes and then communicating them to the health care practitioner knows clearly what the wishes are.
The Chair: Further discussion? Seeing none, we'll proceed to the vote. All those in favour of the PC motion on subsection 13(2.1)? Opposed?
Motion negatived.
The Chair: I would remind all members that they are obliged to vote.
Mr Jim Wilson: I will withdraw the next amendment, given that it pertains to the amendment that was just defeated.
The Chair: That's subsection 14(1)?
Mr Jim Wilson: That's 14.1.
The Chair: Thank you.
The government reprint 14(1).
Mr Wessenger: No, I was going to ask that this be stood down.
The Chair: Do we have unanimous consent to stand down --
Mr Jim Wilson: No.
The Chair: We don't have unanimous consent.
Mr Jim Wilson: I'd like to ask a question on this. If we agree to stand this down, will we see it back, Mr Wessenger? I happen to know the views of the NDP on this, and I have the feeling it's one of these that may just slip in and we won't have an opportunity to discuss it if it doesn't come back. Has it been introduced, and you're standing it down?
The Chair: It's deemed to be moved, as it's in the reprint now.
Mr Wessenger: Perhaps I can assure the member that hopefully -- I assume we'll be back tomorrow morning, but --
The Chair: Would you like to put a time limit on this?
Mr Jim Wilson: We've heard this before.
The Chair: Have it stood down till first thing tomorrow morning?
Mr Jim Wilson: Well, if they'd agree with that.
Mr Wessenger: No, that's not --
Mr Jim Wilson: Because I know what they're up to, Mr Chair. It's the usual technique. I think Elie Martel invented it.
Mrs Sullivan: Mr Chairman, I'd like an explanation from the parliamentary assistant on why the government wants to stand down 14(1) of the bill, which speaks about the principles behind a substitute decision-maker providing consent, and what options it is looking at to replace it or what other issues or areas it wants to add.
Mr Jim Wilson: It's 14.1. It's their amendment, Barbara.
The Chair: No, we're on 14(1).
Mr Wessenger: Yes.
Mrs Sullivan: Yes, 14(1); it's in the reprint.
Mr Jim Wilson: Well, then, I withdraw everything I just said.
Mr Wessenger: It's a new motion.
Mr Jim Wilson: I thought you were dealing with --
The Chair: No, we're on the government reprint.
Mr Wessenger: Oh, excuse me. No, we're not standing down subsection 14(1), not at all. I'm sorry.
The Chair: Subsection 14(1).
Mr Wessenger: Sorry about that.
The Chair: My apologies. This is where I am right at the moment.
Mr Jim Wilson: I thought you were at 14.1.
Mr Wessenger: No, 14.1 is the one --
The Chair: No, we're in the government reprint.
Mr Wessenger: Yes, still the government reprint. My apologies.
Mr Jim Wilson: My apologies. I really thought you were pulling a fast one.
The Chair: We're at subsection 14(1) in the government reprint. Any discussion on the government reprint? Agreed? Carried.
Okay, we're on the government motion on section 14.1.
Mr Wessenger: Yes, if I might ask, I'm going to have that withdrawn.
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The Chair: Withdrawn?
Mr Wessenger: Yes.
The Chair: It's not necessary, but thank you. The Liberal motion on section 15.2.
Mrs Sullivan moves that the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following section:
"Child in need of protection
"15.2 Nothing in this act affects the law with respect to a child in need of protection within the meaning of subsection 37(2) of the Child and Family Services Act."
Mrs Sullivan: This amendment is self-evident. As you know, we had significant representations made before the committee from children's aid societies and others who were concerned about the effect of this act on the responsibilities and indeed the duties accorded to children's aid societies under the Child and Family Services Act. We heard at one point in the hearings from a representative of the Ministry of Community and Social Services. It was clear that they were uneasy with some of the balances between the responsibilities under this act and the responsibilities under the CFSA.
In my view, Bill 110 goes some distance in bringing those issues together, but I don't think it goes far enough, and this amendment is to ensure that there is no misunderstanding or indeed no authority taken away from children's aid societies to operate according to their statutory duty.
Mr Wessenger: I'd ask that this be stood down. The reason is, I think there is some concern about the language from a legal point of view, and we'd like further time to have counsel look at it.
Mrs Sullivan: We've had experience with the government party with reference to standing motions down. I believe we got about 50% of the way through Bill 74 in terms of discussion, and about 50% of the amendments that were put forward were stood down, we were told, for further discussion, for consultation between ministries; because the government hadn't got its act together was in fact the truth.
We don't believe the government wants to complete that bill. We are very concerned about standing down motions. If I can have an explanation of the rationale for standing this motion down, I would be interested in hearing it, but believe me, on Bill 74, when and if we get back to that one, we won't be standing down anything else, because we frankly don't trust their promise.
Mr Wessenger: I'm just wondering, I think there might be --
Interjections.
The Chair: Mr Wessenger has the floor, please.
Mr Wessenger: Perhaps we could have a short recess, should we, to see if we can discuss this clause? Three minutes maybe?
Mr Jim Wilson: The other thing is, you can stand it down if you give us the assurance of when it's coming back.
Mr Wessenger: It might come back tomorrow morning, I would suggest.
Mr Jim Wilson: Okay. We'll take you at your word that it'll be back either tonight or tomorrow morning at the latest.
Mr Winninger: Would you rather have it in writing?
Mr Jim Wilson: I'd like it in blood, but I won't go that far.
Mr Wessenger: We've only had three motions stood down so far, so this will only be four.
Mr Jim Wilson: Yes, we're all doing a good job, but the precedent's been set by your colleague.
Mrs Sullivan: And a request for a fourth.
The Chair: Do we have unanimous consent to stand this down to, at the very latest, first thing tomorrow morning? Agreed.
Mr Jim Wilson: What was that? Subsection 15(2)?
The Chair: It's section 15.2.
Government reprint, subsection 16(1). I believe it's just a deletion. Agreed? Carried. Government reprint, subsections 16(2), (3) and (3.1).
Mrs Sullivan: Did we do 15?
Interjection: We stood it down.
The Chair: The government reprint? That's a whole section.
Mrs Sullivan: All right. Will we have an opportunity to have some discussion of those particular sections, even though they're entire sections?
The Chair: If you choose.
Mrs Sullivan: I'm asking about the process here. If the only way we can get this issue on the floor is to propose an amendment, then I think that perhaps is the way to go. If there can be a discussion of this area and a clarification from the ministry about certain next steps, I'd appreciate that.
The Chair: When we're through all the amendments, we could go back and ask for further comments, and at that time we can discuss whole sections if the committee so chooses, or we can discuss it right now. I'm at your disposal.
Mrs Sullivan: I'd like to have, frankly, a little clarification of what the government's intentions are in terms of making the Weisstub report public, what consultative process it's going to bring forward to deal with the issues related to research and what the next steps will be in terms of codifying a new consent-to-treatment statute with respect to the research issues. Those issues are clearly of vital importance, not only to people who are currently suffering from disease and illness but to people in the future, for whom that disease and illness can be avoided when research is carried out.
We had proposals before the committee. We did not proceed with any amendments on this area because, frankly, we were promised the Weisstub report, and it wasn't forthcoming. I'd like to know what the next steps are.
Mr Winninger: On a point of order, Mr Chair: I don't believe that what Ms Sullivan is asking for now is relevant to the clause-by-clause in which we're engaged.
The Chair: There is a government reprint on sections 15 and 15.1. We've agreed not to close any sections off; we still are open for discussion on them. Mr Wessenger.
Mr Wessenger: I have no objection, for clarification purposes, to asking legal counsel to update the committee with respect to this matter.
Mr Sharpe: Professor Weisstub provided us with a few pages of his draft report dealing with age of consent, and of course it was included in the ministry opinion on the common law aspect. He did not provide us with anything substantive on research models that would enable some form of approval process to be put in place so that research protocols could proceed on sound legal footing. That is one of the main issues he's looking at, of course, research on populations which are not able to provide their own informed consent, and he's promised us the report this fall.
I know he's working on a draft and polishing and finishing it. I don't know when he's going to submit it, though. I would assume that once it's submitted it would be made public and there would be a consultation process with everyone, including the research community, to determine what their views were on his recommendations.
Mrs Sullivan: I don't think counsel should be answering this question, but perhaps the parliamentary assistant would. Is it the government's intention to proceed with separate consent to research procedures which codify processes, procedures and principles with respect to research on incapable people and involving incapable people?
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Mr Wessenger: I think that would be difficult to answer without having the report in and doing a consultation process. Obviously, if you could have the report in and could do a consultation process before you came to third reading of this bill, then it would be possible to incorporate an amendment. However, I would venture to say I am somewhat sceptical that is achievable at this stage since we don't have the report. It will likely have to be by separate legislation, but as I said, that's only assuming the process would not be completed in time.
Mrs Sullivan: I guess all the way through, I've been disappointed in this area. While there was a change made to this section, we certainly know the Alzheimer's patient who is in the advanced stage of the disease, the schizophrenic who is in a psychotic period, people who are in certain other stages of disease where research procedures don't create enormous suffering and in fact can benefit not only those individuals but a generation of people. All of those issues are matters of enormous concern, enormous spending of public dollars and a divergence of ethical stances from place to place in terms of the procedures.
I think we have not explored this adequately. I don't think the government's given enough attention to it. We've had some really quite extraordinary individuals before us who are involved in bioethics, medical-legal ethics and research practices themselves, and they too want to see some action here. Frankly, if we are going to be doing something that is important in terms of making strides in the research leading to a cure for certain diseases and illnesses, I think this is an area that could have been of some big help.
Mr Jim Wilson: While I appreciate a number of the concerns expressed by Mrs Sullivan, I certainly was satisfied with the government reprint and the government's change in this area. I have not received any feedback from the research community, of which my oldest brother is a prominent member, that it is in any way unhappy with the government reprint. Keeping that in mind, I remind the public that my phone number is 325-3858, and if I'm wrong, feel free to call at 9 o'clock tomorrow morning.
The Chair: Further discussion? Seeing no further discussion, we'll proceed along to the government reprint on subsections 16(2), (3) and (3.1). Discussion? Agreed? Carried.
Government reprint, subsection 16(5). Agreed? Carried.
Government reprint, subsection 16(5.1). Agreed? Carried.
Government reprint, subsection 16(7). Agreed? Carried.
Government reprint, subsections 16(10) and (11). Agreed? Carried.
Next is a Liberal motion on subsection 16(10.1).
Mrs Sullivan moves that section 16 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:
"Form of statement
"(10.1) A statement under subsection (10) may be made in the prescribed form."
Mrs Sullivan: Subsection (10) of section 16, which is what we're dealing with here, requires that a person who is giving consent on another person's behalf make a statement that could be lengthy. It talks about identifying his or her relationship with the incapable person, saying that he or she has no reason to believe that the incapable person, before becoming incapable, would have objected to his or her making the decision and so on.
Frankly, in the course of decision-making on behalf of another person, what is more important, it seems to me, to the substitute decision-maker is receiving the information and making the decision based on the same issues that the incapable person himself or herself would make that decision on: the risks, the treatment methods, the disease and illness, the proposals for recovery and change in the course of the health of the person.
Those are the important things around which the substitute decision-maker should be concentrating, not on filling out a whole bunch of pieces of paper in a lengthy manner. In my view, a prescribed form that contains the detail that a person can attest to is the appropriate way to go. It simplifies the whole thing.
Mr Wessenger: I find Ms Sullivan's arguments persuasive and we'll agree to this amendment.
Mr Jim Wilson: I was just going to add that I thought Mrs Sullivan's argument showed innovation and she deserves five stars for them. I'd certainly be happy to support this amendment, because it does simplify what is a very complicated part of this legislation, and she should be commended for that.
The Chair: Further discussion? Proceed to the vote. All those in favour?
Motion agreed to.
The Chair: Unanimous consent on the government reprint, section 17, deletion? Agreed.
We have a PC motion on subsection 19(1).
Mr Jim Wilson moves that subsection 19(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "subject to subsection (2)" in the last line.
Mr Jim Wilson: The rationale behind this amendment is that we believe a substitute decision-maker should have the authority to consent to an admission to a psychiatric facility, that it should not be limited to just the guardian or the attorney for personal care or a power of attorney.
We feel that the way the government reprint has come back, it inappropriately limits the treatment options available to the substitute decider and we're looking for a little broader scope in here.
Mr Wessenger: We'll be opposing this because it would take away the rights under the Mental Health Act.
Mr Jim Wilson: Perhaps you'd like to elaborate on that.
Mr Wessenger: I'll ask counsel to explain then.
Mr Sharpe: As I understand this motion and the next, it would delete subsection (2), which was put in there in order to deal with the patient who objects to being admitted to a psychiatric facility for treatment, and in that case the added safeguards would be that consent can only be given by a guardian under the Substitute Decisions Act and an attorney for personal care where that has been validated.
The concern here is that this could be used if subsection (2) were not there as a means of circumventing the committal procedures under the Mental Health Act for objecting individuals. This is apart from public health laws, where someone is in danger of communicating a virulent disease to someone else and we have the authority to go to a judge, on the request of a medical officer of health, to get an order to confine and treat the person. Mental health is the only area where society confers authority to deprive a person of his liberty because he is ill and a threat to society.
There is a procedure with protections for doing that under the Mental Health Act that have been debated a number of times in the Legislature. The concern was that while we're trying to regularize a procedure in subsection 19(1) to admit people for treatment, there seems to be a bit of a gap now where an individual comes to a hospital, is incompetent and is with a family member. There's nothing, for example, in the Public Hospitals Act that deals with whether the substitute has the ability to admit the person to the facility, so subsection 19(1) was aimed at facilitating that process. But at the same time, we had hoped not to open a side door around the committal protections of the Mental Health Act. That's why subsection 19(2), with the protections requiring a guardian or an attorney for personal care to make those decisions, was seen to be important.
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Mr Jim Wilson: The thrust, obviously, behind the amendment is to try and expand those safeguards to include a substitute decision-maker. As you know, a number of witnesses were not only concerned, but really felt very discouraged by the current provisions of the Mental Health Act, and felt powerless in terms of families dealing with a schizophrenic daughter or son. That's certainly the intent of the legislation: Was there any debate to broaden the scope of subsection 19(2) in terms of who else may make that decision?
Mr Winninger: I think section 19 as it's currently drafted is sufficiently broad that it would meet the concerns we heard expressed by such groups as Friends of Schizophrenics. They were concerned about the revolving-door syndrome, where a patient is admitted who meets the test under the Mental Health Act, then receives treatment, then is discharged from the hospital, and again, perhaps because he or she doesn't take medication or for whatever other reason, then acts out again or exhibits a mental disorder. Each time, either the substitute decision-maker would have to obtain an order from a justice of the peace to get that individual back in the mental health facility or the police would have to become involved or whatever the situation was.
The people who came before us seemed to take heart in knowing that a guardian could be appointed or that a power of attorney for personal care could be validated, which would effectively bring an end to that revolving-door syndrome. I think it's important that we do have validation or that we do have judicial consideration as to who should be the guardian. I don't think you can just dispense with those formalities and safeguards and allow any substitute decision-maker to admit to a psychiatric facility, which will certainly deprive the individual of a number of civil and legal rights.
Mr Jim Wilson: My thoughts on this are that, although we heard the same testimony from parents of schizophrenics, for instance, I don't think they took heart from what the responses were on the government side. They felt that being forced to go through the judiciary was indeed a very onerous, time-consuming and complicated process and they did request of this committee that we consider expanding the decision-making authority and giving this power to the substitute decision-maker. Having said that, I understand the safeguards you're speaking about. With that, Mr Chairman, I suggest we vote on the amendment.
The Chair: Seeing no further discussion, we'll proceed to the vote on the PC motion on subsection 19(1). All those in favour? Opposed? I would remind all committee members that they are supposed to vote.
Motion negatived.
The Chair: PC motion on subsection 19(2).
Mr Jim Wilson: I won't be introducing the motion, given that it refers to the amendment that was just defeated, Mr Chairman.
The Chair: Thank you. Are there any comments on government reprint 19.1?
Interjection: Carried.
The Chair: No, I just asked for discussion.
Government motion on section 20.
Mr Wessenger moves that section 20 of the bill, as reprinted to show the amendments proposed by the minister, be amended by inserting after "shall" in the fifth line "take reasonable steps to."
Mr Jim Wilson: I certainly will be supporting this amendment, given that it stems from the earlier discussion we had about subsection 10(11), and I appreciate the government bringing forward the amendment at this time. Having said that, I won't be introducing the PC amendment pertaining to section 20.
The Chair: Thank you. Further discussion on the government motion on section 20? Agreed?
Motion agreed to.
The Chair: Okay. Would the committee agree to going to subsection 22(10)? This should solve some problems. We'll go to the government motion on subsection 22(10). Is that agreed? This will facilitate things when we get to subsections 22(1) and 22(2).
Mr Wessenger moves that section 22 of the bill, as reprinted to show the amendments proposed by the minister, be amended by adding the following subsection:
"Application of section 10
"(10) Section 10 does not apply to a treatment authorized by this section."
Mr Wessenger: The purpose of this amendment is to provide that rights advice does not apply in the situation of an emergency treatment.
Mr Jim Wilson: I certainly would agree with this amendment.
The Chair: Agreed?
Motion agreed to.
Mr Jim Wilson: For the record, Mr Chairman, that amendment was exactly the same as the next motion under subsection 22(10), the PC motion, and of course I won't be introducing that motion.
The Chair: Thank you. Okay, government amendment 22(1).
Mr Wessenger moves that subsection 22(1) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "section 4, subsections 10(11) and (12) and section 20" in the first and second lines and substituting "sections 4 and 20."
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Mr Jim Wilson: Given that it's identical to the PC motion dealing with subsection 22(1), we're supporting the government motion and not introducing subsection 22(1). I don't want the government to think that I'm somehow starting to be very agreeable because it's past 8 o'clock at night.
The Chair: I'm sure we will reach an impasse at some point. Thank you, Mr Wilson.
Further discussion? Seeing no further discussion, we'll proceed to the vote. All those in favour?
Motion agreed to.
The Chair: Mr Wessenger moves that subsection 22(2) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "Despite subsections 10(11) and (12)" in the first line.
Mr Wessenger: Again, there's a PC motion that parallels this one.
Mr Jim Wilson: I just want to know how you got all my good ideas. This is rather fishy. None the less, I certainly agree with the government amendment.
Mr Wessenger: Obviously, the instructions were the same to legislative counsel. I think that's fair to say.
The Chair: Further discussion? Agreed?
Motion agreed to.
The Chair: Mr Wilson, you will not be introducing your next motion?
Mr Jim Wilson: That's correct.
The Chair: Thank you. Could we go back to the government reprint of 22(1) and (2) as amended? Agreed? Carried.
Mrs Sullivan moves that subsection 22(3.1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Examination
"(3.1) Despite sections 4 and 20, a health practitioner who is of the opinion that a person is incapable with respect to a treatment may conduct an examination of the person and perform diagnostic procedures on the person, without consent, if the examination or procedures are reasonably necessary for the purpose of determining whether subsection (1), (2) or (3) applies to the treatment."
Mrs Sullivan: Mr Chairman, you know that earlier I put in two motions for amendments to subsection 1(1) respecting the recommendations that have been put forward by the College of Physicians and Surgeons with respect to diagnostic evaluation. I think their recommendation is one that cannot but be accepted in one of these forms.
I think the use of the words "diagnostic procedures" rather than the more medical terminology of "diagnostic evaluation" is in fact a preferable approach, because it would provide the consumer as well as the physician with an understanding that the evaluation or the assessment isn't merely by look; it can also be by touch and by instrument. I think the use of "procedures" is useful in that way. As a consequence, my preference is 22(3.1) so that there will be an understanding that the procedure to establish a diagnosis is itself not subject to the consent requirements.
Mr Wessenger: I wonder if Mrs Sullivan might be prepared to accept some changes that are suggested by legislative counsel. These changes are in the third line. "And" is taken out and there are the words "including the performance of diagnostic procedures on the person." Then in the fifth line the word "or" is taken out and the word "and" is inserted. The reason for the "including the performance" is because we want to clarify that examination of the person includes the performance.
Mrs Sullivan: Just hang on here. I want to check what's in the original.
Mr Jim Wilson: Could I just ask for that explanation of the new wording from the parliamentary assistant again?
Mr Wessenger: Yes. Perhaps I should have legislative counsel, since it's their suggestion, give the reasons for the changes.
Mr Doug Beecroft: It depends on how the committee perceives this provision. If the committee thinks or wants to establish that diagnostic procedures are part of an examination, then the appropriate language would be to say "conduct an examination of the person, including diagnostic procedures." If the committee perceives that diagnostic procedures are something completely different from an examination, then there would be no change needed. I'm not sure what different members of the committee feel about that issue.
Mr Jim Wilson: Based on that explanation, I would certainly agree with the new wording, that diagnostic procedures are included in the examination. I think we'd want to actually ensure that is the case.
Mrs Sullivan: I would not be adverse to accepting an amendment, or just changing the words myself to "including diagnostic procedures." I think one of the things that should be clear is that, in every circumstance, the examination or the determination of the diagnosis may not include procedures which are intrusive, but in some circumstances they may. The thing they stick in your ear -- I don't know what it's called -- I think is seen to be an intrusive procedure in a controlled act. That will not necessarily be necessary in every diagnosis of a cold.
I don't want them to be mutually exclusive. I want them either together or apart but both of them there so that the physicians have the option of one or all or individually.
Mr Wessenger: If I might just ask, if the first change is made, "including the performance of," in the fifth line, should the word "or" be "and"?
Mr Beecroft: I think either the word "and" in the third line should be "or" or the word "or" in the fifth line should be "and" or the word "including" should be used. It depends on whether you perceive these things as different things or whether you perceive them as part of the same thing, whether the diagnostic procedures are done as part of an examination or whether they're a completely separate thing that's independent of an examination.
Mr Jim Wilson: All of us here who are speaking on this having gone through the RHPA, I would think there's agreement that in the RHPA hearings and legislation last summer we were well educated and well informed of examinations and diagnostic procedures. I would think there'd be no question among committee members now that they are part and parcel of an examination, if that examination is to be carried out thoroughly, and ensure that the health practitioner has the tools to do the job properly. Whatever wording is required to get that point across I would certainly be in favour of.
Mrs Sullivan: I think the phrase "including diagnostic procedures" is appropriate. I'm not certain whether the subsequent "or" is a significant change.
Mr Beecroft: Not a whole lot turns on the "or" in the fifth line if you put in the "including" because you would be saying that the diagnostic procedures are in effect part of the examination. I think "and" is a better word, because it does recognize that the diagnostic procedures are part of the examination; they're not separate from it.
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Mr Jim Wilson: And "and" is an equals.
Mr Beecroft: Yes.
The Chair: So what is the pleasure of the committee on the amendments?
Mrs Sullivan: Could I suggest that legislative counsel scribble on a sheet and then we can withdraw this one and get a clean, fresh, new amendment to come forward?
Mr Beecroft: Sure.
The Chair: You're agreeing to withdraw this motion?
Mrs Sullivan: Well, when I get the new one. It's staying there until I get the new one.
The Chair: Shall we stand this one down for now?
Mr Wessenger: Sure.
Mrs Sullivan: Stand it down for now.
The Chair: Agreed. Okay, PC motion 22(3.1).
Mr Jim Wilson: Mr Chairman, I'm prepared not to introduce this, given that it's extremely similar to what we've just debated.
The Chair: Thank you.
Government reprint 22(4). Agreed? Carried.
Government reprint 22(5) and 22(6). Agreed? Carried.
Government amendment 22(9).
Mr Wessenger moves that subsection 22(9) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Admission to hospital, etc
"(9) The authority to administer treatment under subsection (1), (2) or (3) includes authority to have the person admitted to a hospital or psychiatric facility for the purpose of the treatment, unless the person objects and the treatment is treatment of a mental disorder as defined in the Mental Health Act."
Mr Wessenger: The reason for this amendment is that where treatment is authorized under the emergency provisions, the unamended subsection 22(9) does not permit admission of a person for treatment of a mental disorder under the Mental Health Act, even if the person is not objecting. So just because a substitute is unavailable, the person could not be admitted. This change does not undermine the Mental Health Act's civil committal rules, because the emergency admission provisions would not give authority to keep the person in a psychiatric facility if the person subsequently objected. It's basically to cover the admission to a psychiatric facility where the person is not objecting; no reason why it shouldn't be permitted.
Mr Jim Wilson: Members will note that the next PC motion dealing with this is very similar, and I'm prepared to support the government's motion at this time and not introduce the PC motion. I note there was a provision similar to this, I believe, in the first draft of the legislation, or there was an intent there, and it's good to see that it's back, because we want to ensure that there are provisions for emergency admissions.
Mrs Sullivan: I'd like the government to clarify if the intent of the PC motion and the intent of the government motion are similar. I see that "unless the person objects here." You could have a person in a drug overdose situation, for example, objecting to admission to a hospital for treatment. The substitute decision-maker and the health practitioner would be at a loss in terms of delivering treatment to the person with the drug overdose because of the words "unless the person objects."
Mr Wessenger: I'm going to ask counsel to clarify that, because I would think this only refers to admission for a drug overdose, but not normally to a psychiatric facility. Am I right? I'll just ask.
Mr Sharpe: Subsection 22(9) dealing with authority -- this is of course emergency treatment. Originally, there was no exemption. Concerns were raised again about circumventing the emergency provisions of the Mental Health Act and the question of whether there is such a thing as a true psychiatric emergency versus the physical emergency. It was felt that psychiatric emergencies on incapable or unconscious people should be dealt with through the Mental Health Act provisions, because those are emergency committal provisions.
The definition in the Mental Health Act of "mental disorder" has for many years been "disease or disability of the mind." In the example given, it's arguable that drunkenness or drug overdoses could create a temporary disability, but I believe most psychiatrists would argue that these are not true mental disorders in current usage justifying admission to a psychiatric facility. Not being an expert in that field, I really can't comment. From a legal perspective, it's certainly arguable that disability of the mind could include temporary disability, however caused.
Mrs Sullivan: Thank you.
Mr Jim Wilson: That's a good point, though, that Mrs Sullivan has brought up. Maybe it's because the hour is getting late. Could I ask for that explanation again between the PC motion and the government motion? What is the effect, in layman's terms, of adding the additional sentence?
Mr Wessenger: You would like an explanation again from counsel with respect to this?
Mr Jim Wilson: Yes, just to be sure. Mrs Sullivan has raised a very good point.
Mr Sharpe: The rationale for the government motion is that the provision in the amended bill would preclude a non-objecting individual suffering from a psychiatric disorder from being admitted to a facility. If he or she objects, then there's the Mental Health Act committal power, even in an emergency. Now, of course, we're within the emergency provisions. But what if it's an emergency and the person isn't objecting to being taken into the facility? The way the bill is now worded in subsection 22(9), where it says, "other than treatment of a mental disorder as defined in the Mental Health Act," it would suggest that the person cannot be admitted, even if he or she is not objecting to gain assistance for the mental disorder which is quite critical and severe. Why would one need to commit them, if they're not objecting? Why deny them access to a facility --
Mr Jim Wilson: It's a voluntary measure.
Mr Sharpe: -- just because they're suffering from a psychiatric disorder? You wouldn't if it was a physical disorder. If the person is objecting, then, as I indicated in an earlier comment, there are committal powers for that. But if he or she is not, then the person is arguably at a disadvantage because the emergency is psychiatric rather than physical.
Mr Jim Wilson: I appreciate the explanation and that's the way I understood it in the explanatory notes provided to me.
Motion agreed to.
The Chair: Any discussion on government reprint, section 23?
Mrs Sullivan: Mr Chairman, I'm now prepared with the assistance of legislative counsel to go back to subsection 22(3.1).
The Chair: Mrs Sullivan moves that subsection 22(3.1) of the bill, as reprinted to show the amendments proposed by the minister, be struck out and the following substituted:
"Examination
"(3.1) Despite sections 4 and 20, a health practitioner who is of the opinion that a person is incapable with respect to a treatment may conduct an examination of the person, including diagnostic procedures, without consent, if the examination and diagnostic procedures are reasonably necessary for the purpose of determining whether subsections (1), (2) or (3) apply to the treatment."
Mrs Sullivan: In putting that motion forward, I withdraw my previous motion which was similar.
Mr Wessenger: We're agreed.
Motion agreed to.
Mrs Sullivan: In that case the two motions I have with respect to altering the definition of "treatment" and the addition of "diagnostic evaluation" in subsection 1(1) are now withdrawn.
The Chair: Where are we now?
Mrs Sullivan: I had earlier stood down two amendments to subsection 1(1), one with respect to the definition of "treatment" and one with respect to the definition of "diagnostic evaluation." Since we've passed that amendment, those two are now stood down.
The Chair: You mean withdrawn?
Mrs Sullivan: Withdrawn.
Mr Winninger: Are we calling it a day?
Interjection: We might be able to finish this off today.
Mr Jim Wilson: I don't want to spoil the party, but it may not be prudent to continue much further. It looks like what we have left can be handled fairly quickly in the morning and I for one am getting tired and starting to see clauses overlapping clauses. So in the public's best interest, it may be prudent that we start in the morning again fresh and get it cleaned up pretty quickly tomorrow.
Mr Wessenger: Perhaps we could just do one clause 20(a) motion and then we could perhaps consider adjourning.
The Chair: Sorry, which motion?
Mr Wessenger: It's a motion to strike out "seven days" and put in "forty-eight hours" in clause 20(a). I think we could do it very quickly.
The Chair: Is this a new motion?
Mr Wessenger: Yes, a new motion. It's one we forgot to do, so I'm told.
Mrs Sullivan: Do we have this one?
Mr Winninger: Do we have it?
The Chair: No, we don't.
Mr Wessenger moves that clause 20(a) of the bill, as reprinted to show the amendments proposed by the minister, be amended by striking out "seven days" in the first line and substituting "forty-eight hours."
Motion agreed to.
The Chair: Mr Morrow.
Mr Morrow: Thank you very much, Mr Chair, for recognizing me. I really appreciate that. I want to help out the honourable member over there, Mr Wilson, and at this time, being so late in the evening and I'm sure we're all tired and we can get back to this in the morning, I will move adjournment.
The Chair: Mr Morrow has moved adjournment. All those in favour? Opposed? Carried.
This committee stands adjourned until 10 am tomorrow morning.
The committee adjourned at 2045.